Confusion Deemed Likely in Cracker Barrel Infringement Dispute

The Seventh Circuit Court of Appeals has ruled that a district court properly
granted Kraft Foods a preliminary injunction against the sale of Cracker
Barrel Old Country Store (CBOCS) food products in grocery stores under
Kraft’s registered trademark name “Cracker Barrel.” Kraft Foods Group Brands
LLC v. Cracker Barrel Old Country Store, Inc., No. 13-2559 (7th Cir., decided
November 14, 2013). The court agreed that consumers could be confused
when viewing a CBOCS ham label on a grocery store shelf or in a store circular
because the words “Cracker Barrel” were larger than “Old Country Store” and
Kraft cheeses also carry the “Cracker Barrel” name. While the logos are not the
same, the court said that some consumers might believe that both products
were made by Kraft.

The court weighed the respective harms to both companies and found the
potential harm to Kraft greater, because it could be wrongly blamed should
any of CBOCS’s products prove to be inferior to what a consumer expects. On
the other hand, CBOCS has other outlets for its meat and deli products, selling
them online and through its restaurants’ “country stores.” According to the
court, “irreparable harm is especially likely in a trademark case because of the
difficulty of quantifying the likely effect on a brand of a nontrivial period of
consumer confusion.”

The court further opined, “mainly for future reference,” on the consumer
survey that Kraft submitted to support its claim of consumer confusion.
Noting that the researcher who performed the survey “appears to be basically
a professional expert witness,” the court described the survey’s weaknesses
and questioned its “probative significance.” Writing for the circuit court
panel, Judge Richard Posner also suggested other ways for litigants to prove
consumer confusion.