Tweet served as evidence of initial interest confusion in trade dress case

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.

One thought on “Tweet served as evidence of initial interest confusion in trade dress case

  1. Eric Goldman - June 16, 2014

    That’s true, but then the court follows up by concluding: “Taken as a whole, KIND’s evidence of actual confusion is weak; this factor weighs slightly in favor of Plaintiff.” Further, the court denies the plaintiff’s motion. Initial interest confusion is dead as a legal doctrine, and this case doesn’t change that assessment. Eric.

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