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Guest article

Kind Vs Clif Bar: 5 tips to make your food product packaging protectable

By Anuj Desai , 20-Aug-2014

Kind Vs Clif Bar: Food Product Packaging

‘One would be hard-pressed to find a marketing professional who did not believe in the uniqueness of his or her product branding portfolio. Indeed, store shelves are crowded with an ever-increasing variety of eye-catching and interesting product packaging, all in an attempt to lure a customer bewildered by choice.

What some marketers do not know, is in certain situations, product packaging can function as a trademark, i.e., like a logo or product name, to identify the product as one emanating from a particular source of quality. This concept is known as trade dress, which refers to the visual appearance of a product or its packaging. And, just like a trademark, trade dress can be protected and enforced in the marketplace.

Anuj Desai

Kind Healthy Snacks believes the product packaging of its snack bars is distinctive. When it learned Clif Bar introduced a competing product called Mojo that had similar looking packaging, it sued for trade dress infringement. Clif disputes the packaging of Kind bars is distinctive.

Based on initial evidence, the court appears to agree with Clif, recently denying Kind’s request to temporarily prohibit Clif from selling the competing Mojo bars.

While Kind has appealed that ruling, the trial court’s order provides marketing professionals with key insight into what makes trade dress worthy of protection under the law.

In essence, Kind claims its product packaging trade dress comprises of a transparent, rectangular front panel; a horizontal stripe bisecting the panel; a text description of the type of snack bar; a vertical black band; and a slender package size, among other details.

The question the court has to address, however, is whether such similarity is of such a degree to be likely to confuse customers. At this early stage of the lawsuit, the court is not convinced Kind’s product packaging meets that high standard. Among other things, the court found the transparent packaging was functional (it allows consumers to see the product and its ingredients). Under the law, packaging elements that serve a functional purpose are not deemed to be able to serve a source identification purpose.

The court also found many others in the snack bar industry used elements similar to Kind’s product packaging. There was little evidence consumers associated the transparent packaging with Kind or that customers were actually confused by the packaging of the Mojo bar. The court came to this decision even after acknowledging evidence that Clif’s marketing team sought to emulate Kind’s product packaging as “best in class packaging.”

What this means for you

It is unclear whether Kind will ultimately succeed in the lawsuit after resolving its appeal and developing additional evidence. Marketing professionals in the food industry seeking to create distinctive product packaging trade dress, however, can learn from this case in the following ways:

1. Avoid trade dress that serves a function. For example, the shape of a POM juice bottle, reminiscent of a pomegranate, serves no apparent purpose other than to identify the source of the juice product in a visually distinctive manner.

2. Do your due diligence. If you want your trade dress to be protectable, avoid using product packaging elements that are common in your industry. Also, avoid mimicking the trade dress of others. Otherwise, you could be at the receiving end of a cease and desist letter.

3. Tell customers to look for your trade dress. Marketing communications that instruct consumers to look for your product packaging in the store sends a clear message to competitors that your trade dress serves a source identification purpose. Doing so also builds the desired brand association in the minds of consumers.

4. Survey customers. Following the launch of products bearing your distinctive packaging, it may be worthwhile to survey customers to determine whether they identify the packaging as an indication of source, i.e., does the packaging serve as a trademark. If so, this evidence could come in handy when seeking to address infringement by a competitor who claims that your product packaging is generic.

5. Enforce your trade dress. It is no good to invest significant resources in distinctive product packaging and then let your competitors imitate your trade dress. Remain vigilant in the marketplace and take appropriate action against competitors who seek to piggyback on the goodwill associated with your distinctive product packaging.’

Anuj Desai, intellectual property & litigation counsel at Arnall Golden Gregory

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