Kraft Foods Group wins US appeals court ruling provisionally keeping products sold by Cracker Barrel off grocers' shelves

Nevin Barich

CHICAGO , November 14, 2013 (Bloomberg LP) – Kraft Foods Group Inc., the maker of Cracker Barrel-brand cheeses, won a U.S. appeals court ruling provisionally keeping products sold by the Cracker Barrel Old Country Store Inc. restaurant chain off grocers’ shelves.

“Familiarity is likely to have made the name Cracker Barrel salient to grocery shoppers, and so any product bearing that name might be attributed to Kraft, even if close scrutiny of the label would suggest that the product might well have a different origin,” the Chicago-based three-judge appeals panel said today.

Upholding a preliminary injunction issued this year by a lower court, the appellate judges said Kraft could be injured if consumers were dissatisfied with the restaurant chain’s products.

“If a consumer has a bad experience with a CBOCS product and blames Kraft, thinking it is the producer -- Kraft’s sales of Cracker Barrel cheeses are likely to decline,” U.S. Circuit Judge Richard A. Posner wrote for the court.

Kraft Foods, based in Northfield, Illinois, has made Cracker Barrel-brand cheese since 1954 and has derived more than $100 million in revenue from it, according to its website.

PACKAGED HAM

It sued the Lebanon, Tennessee-based Cracker Barrel restaurant company for trademark infringement this year after learning of its plan to sell packaged ham and other branded products in grocery stores. The restaurant chain has more than 600 locations in 42 states, according to its website.

“The likelihood of confusion seems substantial and the risk to Kraft of the loss of valuable goodwill and control therefore palpable,” the panel said, upholding U.S. District Judge Robert Gettleman’s July 1 order.

Gettleman also required Kraft to post a $5 million bond in case Cracker Barrel turns out to have been wrongfully blocked from selling its products.

The media relations department for Cracker Barrel Old Country Stores didn’t immediately reply to a voice-mail message seeking comment on today’s decision. Kraft’s media relations dept didn’t immediately respond to a phone message seeking comment.

The average Cracker Barrel restaurant generated more than $3.3 million in sales in fiscal 2012, while the typical adjacent retail store produced more than $800,000 in sales, according
to the company’s website fact sheet.

The case is Kraft Food Group Brands LLC v. Cracker Barrel Old Country Store Inc., 13-2559, U.S. Court of Appeals for the Seventh Circuit (Chicago).

--Editors: Charles Carter, Andrew Dunn

To contact the reporter on this story: Andrew Harris in federal court in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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