The maker of KIND bars sued the maker of Clif bars alleging that the packaging of the Clif MOJO bar infringes the trade dress used for KIND bars. Plaintiff moved for a preliminary injunction, but the court denied the motion. But in its analysis, the court considered the relevance of a Twitter user’s impression of the products. Plaintiff submitted a tweet as evidence in which the user wrote, “I was about to pick up one of those [Clif MOJO bars] because I thought it was a Kind Bar at the vitamin shop ….” The court found that this type of initial interest confusion was actionable and therefore the tweet supported plaintiff’s argument.
KIND LLC v. Clif Bar & Company, 2014 WL 2619817 (S.D.N.Y. June 12, 2014)
Evan Brown is an attorney in Chicago, advising clients on matters dealing with trademark protection and enforcement, technology, the internet and new media. Contact him.