According to KIND, its unique packaging design incorporates a transparent front panel which allows customers to see the product itself. When KIND noticed Clif’s Mojo bars using similar see-through packaging, the company sued for trade dress infringement. Clif, in turn, claims that KIND’s packaging is not distinctive.
Based on initial evidence in the case, the court denied KIND’s request to temporarily prohibit Clif from selling its Mojo bars. KIND has appealed the ruling. The court highlighted many other companies in the snack-bar industry using elements similar to KIND’s product packaging. It also said the transparent packing serves a “functional purpose,” allowing consumers to see the product and its ingredients.
As the law states, packaging that serves such a serviceable purpose is not considered able to serve a source identification purpose as well. The court recognized, however, evidence that Clif’s marketing team identified KIND’s product packing as “best in class packaging” and sought to emulate its high standards.
It remains to be seen whether KIND will win the appeal. What this case highlights is the importance of doing due diligence when you’re creating distinctive product packaging that can be protected under trademark law.