Benjamin Appelbaum, Attorney at Law

Nestlé alleges trademark confusion between Crunch and competitor

There are many things that go into making a business viable. In some cases a trademark could play a vital role. In those situations it is particularly important that the trademark is not diluted. Accordingly, when it becomes clear this is what is happening, a business needs to take steps to protect its trademark rights. This could entail enforcement options or litigating.

Recently, the maker of the Nestlé Crunch bar—Nestlé USA—filed a lawsuit against another company that makes baked protein bars called Fit Crunch. In the claim, Nestlé claims that Pervine is guilty of unfair competition, false designation of origin and trade dress infringement. To support these claims it alleges that the packaging is “remarkably similar” and the trademark is “confusingly similar.” Its overall concern is that a consumer seeking to purchase the chocolate bar might actually mistakenly pickup the protein bar instead. This could lead to Nestlé losing money.

Nestlé is seeking punitive damages in an unspecified amount. In cases of this nature there are several types of relief that could be sought besides punitive damages.

The first is injunctive relief. When successful, a party secures an order from the court that instructs the other party to stop using the trademark and possibly even requires the other party destroy products that have the trademark on them.

Next, a declaratory judgment could be sought. This approach might be used by the allegedly infringing party to get the court to determine that the trademark was not infringed.

Last, a cease-and-desist demand—the most basic approach—essentially asks the infringer to stop using the trademark. Should the infringing party choose to continue the behavior, its failure to stop could demonstrate willful infringement.

How this case will be resolved remains to be seen.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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