Kraft Foods has filed suit against Cracker Barrel Old Country Store, Inc. (“CBOCS”) in light of the latter’s announced plans to expand use of the CRACKER BARREL trademark into Kraft’s retail channels.
Kraft alleges that it has been “producing and selling CRACKER BARREL brand cheese in supermarkets, grocery stores, big-box stores and other food retail stores throughout the United States for almost 60 years.” And “since 1954, the only CRACKER BARREL brand products offered at grocery and similar stores have come exclusively from Kraft or have been licensed by Kraft.” During this period, Kraft contends that “CBOCS maintained a distance from Kraft both with respect to goods sold and channels of trade used” by only using the mark in connection with its combination restaurants and country stores, and its internet website. However:
After more than four decades of the status quo, CBOCS on November 13, 2012 publicly announced that [it] “will bring [CRACKER BARREL branded] products consistent with the Cracker Barrel experience such as ham, bacon, assorted lunch meats, glazes, jerky and summer sausage to a wide range of retail outlets including grocery and club stores and mass merchandisers,” thereby extending the brand “beyond [CBOCS’] physical stores.”
Kraft asserts that customer confusion will be “inevitable” because these announced products will “enter into Kraft’s trade channels,” are “highly related to Kraft’s cheese products,” and will be sold “under the identical CRACKER BARREL mark.” Accordingly, Kraft seeks a judicial declaration that any use of the CRACKER BARREL mark by CBOCS in connection with food products sold through third party retail food channels would constitute infringement of Kraft’s registered CRACKER BARREL mark.
Kraft’s Complaint is based on the principle that owners of the same trademark may co-exist if the nature of their respective goods and channels of trade are sufficiently distinct that consumers would not confuse the two products as coming from the same source. But if the junior user of the mark expands its use to encroach upon the products and/or channels of trade of the senior user, then the trademark laws will protect the latter against such expansion.