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7th Cir Affirms Kraft's Preliminary Injunction Against Cracker Barrel

By Gabriella Khorasanee, JD on November 20, 2013 | Last updated on March 21, 2019

In the battle of the Cracker Barrels, the Seventh Circuit affirmed the district court's grant of preliminary injunctive relief against Cracker Barrel Old Country Store, Inc. ("CBOCS"), reports the Chicago Tribune.

The Cracker Barrel Names

Kraft has been selling low-cost, processed cheese under the Cracker Barrel name for over 50 years, to thousands of grocery stores across the country. CBOCS is a chain restaurant with 620 locations across the country. When Kraft learned that CBOCS planned to sell prepared foods to grocery stores under the CBOCS name, Kraft initiated a trademark infringement suit under the Lanham Act, and requested a preliminary injunction. The district court granted Kraft's motion, and CBOCS appealed.

Though CBOCS did not sell cheese under the Cracker Barrel name, the Seventh Circuit found that the district court was nonetheless justified in granting the preliminary injunction. The court noted that the similarity of the logos, products, distribution channels, and advertising overlap could result in customer confusion, and Kraft's loss of good will. The fact that CBOCS has other retail avenues open to it, such as online sales and stores attached to restaurants, also weighed in favor of granting a preliminary injunction.

Expert Testimony

While Judge Posner had our (and Kraft's) attention, he issued a little benchslap regarding the consumer survey created by Kraft's "professional expert witness." He noted the bias that may inadvertently (or intentionally) make its way into the survey, and instead made some suggestions for expert testimony that would be more useful or "illuminating."

While this is just a temporary win for Kraft, it seems like this is a text book case that exemplifies the need for trademark protection, and the possibility of customer confusion. We'd be surprised if Kraft didn't win this on the merits, they just better have some better expert testimony if they want the Seventh Circuit to affirm.

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