JS 44C/SDNY

REV. 4/2014

ORIGINAL

CIVIL COVER SHEET

purpose

initiating the civil docket sheet

*9
PLAINTIFFS
KIND LLC

DEFENDANTS

- y,
FLAGST^t FOQDS (a/kV&NACKS HC0MNGOJ*&

r^ -'-4

AMPORTTOdbS (a/k/a AMERICAN IMPORTING CO., INC.)

ATTORNEYS (FIRM NAME,ADDRESS, AND TELEPHONE NUMBER
DEBEVOISE & PLIMPTON LLP

ATTORNEYS (IF KNOWN)

919 THIRD AVE, NEW YORK, NY 10022

(212) 909-6000

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Action for trade dress infringement and false designation of origin under 15 U.S.C. 1125(a) and other state/federal unfair competition laws.
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? Nr&esQjudge Previously Assigned

Ifyes, was this case Vol. Invol. Dismissed. No Yes

IS THIS AN INTERNATIONAL ARBITRATION CASE?

No [*]

(PLACEAN [x]IN ONE BOXONLY)

If yes, give date

&Case No.

Yes fj]
NATURE OF SUIT
ACTIONS UNDER STATUTES

CONTRACI

PERSONAL INJURY

PERSONAL INJURY

[ ] 367 HEALTHCARE/

[ ] 110
[ 1120
[J130
[]140
[J 150

[ ] 151
[]152

INSURANCE
MARINE
MILLER ACT

[]160

LIABILITY

NEGOTIABLE

[ ] 320 ASSAULT, LIBEL &

INSTRUMENT
RECOVERY OF

[ ] 330 FEDERAL

SLANDER

OVERPAYMENT &

EMPLOYERS'

ENFORCEMENT

LIABILITY

OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS

(EXCL VETERANS)
[]153

[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY

[ J 350 MOTOR VEHICLE

[ ] 355 MOTOR VEHICLE

[ ] 365 PERSONAL INJURY

[ ]195

[ ] 368ASBESTOS PERSONAL l JbaU 'HER

[ J 360 OTHER PERSONAL

OF VETERAN'S
BENEFITS
STOCKHOLDERS

[ J 362 PERSONAL INJURY -

INJURY

MED MALPRACTICE

[ ] 196 FRANCHISE

REAL PROPERTY

[ J 370 OTHER FRAUD

[ ] 371 TRUTH IN LENDING

I ]210

LAND

[ ]220
[ ]230

CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT

[]240
[]245

TORTS TO LAND
TORT PRODUCT
LIABILITY

[ ]290

ALL OTHER

LABOR

[ ] 385 PROPERTY DAMAGE

[ J 463 ALIEN DETAINEE

[ ] 510 MOTIONS TO
ACTIONS UNDER STATUTES

VACATE SENTENCE
28 USC 2255

CIVIL RIGHTS

[ ] 530 HABEAS CORPUS

[ ] 535 DEATH PENALTY
[
] 540 MANDAMUS & OTHER
[]440 OTHER CIVIL RIGHTS

[ J 710 FAIR LABOR

STANDARDS ACT

DISABILITIES EMPLOYMENT

ANTITRUST
BANKS & BANKING
COMMERCE
DEPORTATION
RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT

(RICO)
[ 1480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV
[ ) 850 SECURITIES/
COMMODITIES/
EXCHANGE

[ j863 DIWC/DIWW (405(g))

[ J 864 SSID TITLE XVI

[ ] 865 RSI (405(g))

[ J 890 OTHER STATUTORY

ACTIONS

[ ] 740 RAILWAY LABOR ACT

[ ] 751 FAMILY MEDICAL

[ ] 891 AGRICULTURAL ACTS

FEDERAL TAX SUITS

LEAVEACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION

[ J 791 EMPL RET INC

IMMIGRATION

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION

[ ] 446 AMERICANS WITH

] 410
] 430
] 450
] 460
] 470

RELATIONS

SECURITY ACT

[ ] 550 CIVIL RIGHTS

[ ] 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

REAPPORTIONMENT

[
[
[
[
[

[ ] 862 BLACK LUNG(923)

(Non-Prisoner)

[ ] 445 AMERICANS WITH

28 USC 157

[ J 861 HIA(1395ff)

PROPERTY DAMAGE

PRISONER PETITIONS

ACCOMMODATIONS

[ ] 423 WITHDRAWAL

SOCIAL SECURITY

[ ] 380 OTHER PERSONAL

I J 375 FALSECLAIMS

28 USC 158

[ ] 820 COPYRIGHTS
[ ] 830 PATENT
M 840 TRADEMARK

[ ] 720 LABOR/MGMT

[ ] 441 VOTING
[ ] 442 EMPLOYMENT
[ J 443 HOUSING/

OTHER STATUTES

[ 1400 STATE

PROPERTY RIGHTS

PERSONAL PROPERTY

PRODUCT LIABILITY

OTHER
CONTRACT
CONTRACT

BANKRUPTCY

[ J 422 APPEAL

INJURY PRODUCT
LIABILITY

PRODUCT LIABILITY

RECOVERY OF
OVERPAYMENT

PRODUCT
LIABILITY

21 USC 881

PRODUCT LIABILITY

SUITS

[]190

FORFEITURE/PENALTY

PHARMACEUTICAL PERSONAL
[ J 625 DRUG RELATED
INJURY/PRODUCT LIABILITY
SEIZURE OF PROPERTY

APPLICATION

[ ) 465 OTHER IMMIGRATION

ACTIONS

[ ] 870 TAXES (U.S. Plaintiff or

Defendant)
[ ] 871 IRS-THIRD PARTY

[ ] 893 ENVIRONMENTAL
MATTERS

[ ] 895 FREEDOM OF

26 USC 7609

INFORMATION ACT

[ J 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES

CONDITIONS OF CONFINEMENT

DISABILITIES -OTHER

[ ] 448 EDUCATION

REAL PROPERTY

Check ifdemanded incomplaint:

CHECK IF THIS IS ACLASS ACTION

UNDER F.R.C.P. 23

DEMAND $ Damages

OTHER Injunction

(pOgYjO^lyAJM THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN S.D.N.Y.?

JUDGE

DOCKET NUMBER

Check YES only ifdemandedincomplaint

JURY DEMAND: E YES D\|0

NOTE: You must also submit atthe time of filing the Statement of Relatedness form (Form IH-32).

(PLACEAN x INONEBOXONLY)

L*J 1 Original

ORIGIN

|_| 2 Removed from

Proceeding

LJ 3 Remanded LJ 4 Reinstated or

State Court

from

a. all parties represented

fj 5 Transferred from 6 Multidistrict

Reopened

(Specify District)

Litigation

r~l 7 Appeal to District

Judge from
Magistrate Judge
Judgment

Appellate
Court

I I b. At least one
party is pro se.

(PLACEAN xINONEBOXONLY)
\J 1 U.S. PLAINTIFF

BASIS OF JURISDICTION

Q 2 U.S. DEFENDANT 0 3 FEDERAL QUESTION

IF DIVERSITY, INDICATE

Q4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] inone boxfor Plaintiff and one boxfor Defendant)
PTF

DEF

[ ]1

[ ]1

CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY

[]3[]3

CITIZEN OF ANOTHER STATE [ ] 2

[ ]2

INCORPORATED or PRINCIPAL PLACE

[ ]4 [ ]4

CITIZEN OF THISSTATE

PTF DEF

INCORPORATED and PRINCIPAL PLACE

PTF

DEF

[ ]5

[ ]5

OF BUSINESS IN ANOTHER STATE

FOREIGN NATION

[ J6

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

KIND LLC

1372 Broadway
New York, NY 10018
New York County

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

FLAGSTONE FOODS

AMPORT FOODS

380 St. Peter Street, No. 1000

St. Paul, MN 55102
Ramsey County

380 St. Peter Street, No. 1000

St. Paul, MN 55102
Ramsey County

DEFENDANT(S) ADDRESS UNKNOWN

REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, IHAVE BEEN UNABLE, WITH REASONABLE DILIGENCE TO ASCERTAIN
RESIbENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

\J WHITE PLAINS

(DO NOT check either box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS

\k\ MANHATTAN

COMPLAINT.)

DATE 2/23/2015
DC|DT#

KtL/tlH' ff

SIGNATUREOF ATTORNEY OF RECORD

^
/^ ^^
'=:=

^y^

ADMITTED TO PRACTICE IN THIS DISTRICT

-~-*
-^

Magistrate Judgeis to be designated by the Clerk ofthe Coiin/A,', <"

[]
NO (DATE ADMITTED Mo. .11
W YES

Attorney Bar Code # jH 4651

w^jij. i> iVA

Magistrate Judge
RubyJ. Krajick, Clerk of Court by

is so Designated.
. Deputy Clerk, DATED

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

Yr. 1999 )

JUDGE ENGELMAYER
David H. Bernstein (dhbernstein@debevoise.com)
Jyotin Hamid (jhamid@debevoise.com)
Charles W. Baxter (cwbaxter@debevoise.com)

ECF CASE

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6696

Attorneys for Plaintiff KIND LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CO

KIND LLC,

c;:

Plaintiff,

-againstFLAGSTONE FOODS a/k/a SNACKS HOLDING

CORP. and AMPORT FOODS a/k/a AMERICAN

IMPORTING CO., INC.,

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

KIND LLC ("KIND"), by its attorneys, Debevoise & Plimpton LLP, for its

complaint against Flagstone Foods also known as Snacks Holding Corp. and Amport
Foods also known as American Importing Co., Inc. (together, "Flagstone"), alleges as
follows:

INTRODUCTION

1.

This is an action for trade dress infringement, deceptive acts and practices,

unfair competition, and related claims arising from Flagstone's launch of its new
NATURE'S HARVEST snack bars in packaging that was designed intentionally to

mimic the look of KIND'S distinctive trade dress. Flagstone is, by its own account, one

of the largest manufacturers and distributors of private label healthy snack products in
North America. Recognizing the rapid growth in the healthy snackindustry generated by
KIND'S innovative healthy snack bar products, Flagstone decided to produce and market

a derivative, private label version of top-selling KIND products. But Flagstone has done
more than develop derivative, private label products. It has adopted packaging for those

products intentionally designed to mimic the distinctive look of KIND'S packaging.

These new bars in their strikingly similar packages will inevitably confuse consumers.
2.

When KIND bars entered the market a decade ago, they transformed the

nutritional snack bar category by using simple, whole ingredients the consumer could

"see and pronounce." This was a revolutionary change; most other bars at the time were
made from unrecognizable and unpronounceable ingredients that were extruded into
brown globs. To emphasize KIND'S use of simple, whole ingredients and the high
nutritional quality of its bars, as well as to create a distinctive, sleek, modern impression
on store shelves, KIND designed an innovative and distinctive trade dress which

prominently features a large rectangular window through which its visually-inviting,

delicious-looking bars can be seen.

3.

Flagstone is a manufacturer and distributor of private label snack items.

Sometimes these products fill a gap in a retailer's branded offerings, and sometimes they
provide a retailer with a product designed to compete with higher-priced branded
alternatives in the same retail space.

4.

Although KIND understands that there is a place for legitimate

competition from private label manufacturers who do not cross the line, KIND cannot
stand by while a leading private label manufacturer seeks to usurp KIND'S hard-earned
goodwill and confuse the consuming public by releasing a private-label version of
KIND'S products in packaging designed to be confused with KIND'S distinctive
packaging.

5.

As shown above, the new NATURE'S HARVEST trade dress mimics the

distinctive overall impression of KIND's packaging trade dress, appropriating several key
aspects of KIND'S unique look to create a confusingly similar overall impression.
Among these striking similarities are (1) a transparent, rectangular front panel in
essentially identical proportion to the remaining package; (2) a horizontal stripe of
essentially identical proportion bisecting the transparent front panel and containing the
flavor of the bar in text; (3) an opaque panel, offset to the side of the package, containing

the brand identifier above a bulleted list of many of the bar's key healthful attributes; (4)

a thin vertical line in a contrasting color, marking the border between the transparent
panel and the brand-identifier panel; (5) opaque vertical bands, or end caps, at either edge

of the product package; and (6) a roughly identical slender shape. The overall impression
conveyed by the NATURE'S HARVEST trade dress, in its entirety, is confusingly
similar to that created by the KIND packaging.
6.

The confluence of similarities between the KIND Trade Dress and the

NATURE'S HARVEST trade dress is no coincidence. In May 2014, KIND became

aware of Flagstone's efforts to market its own healthy snack bars to retailers as a

potential private label offering. KIND notified Flagstone that the images Flagstone was

using to market its private label product infringed KIND'S rights in its unique package,
and Flagstone confirmed that the images were concepts only, that it would immediately
discontinue use of each image in its marketing efforts, and that it would take KIND's

concerns into consideration in the future. There is no question that Flagstone is fully
aware of KIND's rights and has made a conscious decision to disregard them.
7.

Flagstone's unlawful conduct is likely to create consumer confusion,

which will cause serious and irreparable harm to KIND. This conduct, if not enjoined,
could eviscerate the goodwill KIND has spent years carefully cultivating for its brand.

THE PARTIES

8.

KIND is a corporation organized and existing under the laws of the State

of Delaware with its principal place of business at 1372 Broadway, New York, New York
10018.

9.

Flagstone Foods is the assumed name of Snacks Holding Corporation, a

corporation organized and existing under the laws of the State of Delaware with its
principal place of business at 380 St. Peter Street, Number 1000, St. Paul, Minnesota,
55102.

10.

American Importing Company, Inc. (operating as Amport Foods), is a

business corporation organized and existing under the laws of the State of Minnesota
with its principal place of business at 380 St. Peter Street, Number 1000, St. Paul,
Minnesota, 55102.

JURISDICTION AND VENUE

11.

This Court has original jurisdiction over the subject matter of this action

pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338 and has supplemental
jurisdiction pursuant to 28 U.S.C. 1367(a).
12.

This Court has personal jurisdiction over Defendants pursuant to N.Y.

Civ. Prac. L. & R. 302(a). Defendants are regularly soliciting business and have
transacted business in the State of New York and in this District through marketing and
product displays on the Internet, sale of their products on a nationwide basis including

extensive sales throughout the State of New York and in this District, and sale of
products through Internet retailers. Defendants derive substantial revenue from interstate
commerce. In addition, through their activities, Defendants are wrongfully causing injury
to KIND in the State of New York and in this District, such injury being reasonably
foreseeable.

13.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because

Plaintiff resides in this district under 28 U.S.C. 1391(c), and because Defendants
conduct business in this District.

KIND BARS AND THEIR TRADE DRESS

14.

KIND is a market leader in the nutritional snack bar category and is the

number one brand in the healthy snack bar segment within the nutritional snack bar

category. KIND's Fruit & Nut bars transformed the nutritional snack bar category when
they were launched a decade ago. Unlike most other leading nutritional snack barsthen

and nowwhich typically start from a paste or emulsion, KIND's healthy snack bars are
made from identifiable, nutritionally rich "ingredients you can see and pronounce," a

branding proposition KIND registered as a trademark (Federal Trademark Registration

No. 3,634,183). These include ingredients such as whole nuts, dried fruits and honey.
15.

KIND designed a graphic identity for its bars that would resonate with its

core brand proposition (simple, whole ingredients you can see and pronounce) and which
would convey a distinctive, sleek, and modern impression on store shelves. This trade

dress, shared among three product lines, consists of the distinctive arrangement and

combination of elements comprising product packaging for the presentation of a ready to

eat food bar (the "KIND Shared Trade Dress"). As depicted below, the packaging is a
glossy, plastic wrapper sized to contain an individual 40 gram bar. The packaging

configuration consists of four rectangular segments. The segments at both edges of the
package are the same contrasting opaque color. Along the right edge of the left-most
segment runs a vertical line of approximately 1/16 of an inch in width. Immediately to
the right of the 1/16 inch line is a transparent segment, which consists of a rectangular,

transparent block. The transparent segment is divided by a horizontal band, boundedon

the top and bottom by thin white lines, containing the productflavor identifier. Along the
left edge of the right-most segment runs a vertical, thin, white line. Immediately to the
left of the vertical white line is the final segment, which consists of a black-colored
rectangular block. The product line
identifier (i.e. FRUIT & NUT,

PLUS, or NUTS & SPICES) appears

within the black-colored block in
line with the horizontal band that

divides the transparent segment, and

below in smaller sans-serif font

appears a list of product attributes, each bulleted with a stylized check mark. Above the
product line identifier is the brand identifier, "KIND," in white capital letters against the
black background. Above the brand identifier are four smaller vertical rectangular bars

colored yellow, red, green and blue from left to right. Separating the black-colored
segment and the transparent segment is a vertical red-colored line approximately 1/32 of
an inch in width.

16.

These three healthy snack bar lines are comprised of bars in 22 flavors, all

of which utilize the distinctive KIND Shared Trade Dress. Since its inception, KIND has

sold nearly 500 million healthy snack bars in the United States in the KIND Shared Trade
Dress.

17.

Each of the individual flavors has a packaging that incorporates the KIND

Shared Trade Dress together with other features.

a.

For example, since 2004 KIND has packaged its Almond &

Apricot bar in the package depicted below (the "KIND A&A Trade
Dress").

The KIND A&A Trade Dress is comprised of the distinctive arrangement

and combination of unique elements in combination with shared elements

in the KIND Shared Trade Dress above. The segments at both edges of

the package are yellow in color. Along the right portion of the left-most
segment, and visible on the face of the package, appear the terms
"NATURAL INGREDIENTS YOU CAN" in gold, sans-serif font. The
1/16 inch vertical line along the right edge of the left-most segment is gold
in color. Within the horizontal black-colored band bisecting the
transparent rectangular segment is the flavor identifier, "ALMOND &
APRICOT," in white, sans-serif letters and a stylized ampersand. The
product line identifier "FRUIT & NUT" appears within the black-colored
segment in white, sans-serif font, and below, visible on the leading face of

the package, in smaller sans-serif font appear the following product

attributes, each accompanied by a stylized check-mark: "ALL NATURAL
/ NON GMO," "GLUTEN FREE," "LOW GLYCEMIC," and "GOOD
SOURCE OF FIBER." Since 2011, KIND has achieved over $24.8

million in measured outlet sales of Almond & Apricot bars in the

distinctive KIND A&A Trade Dress.

b.

As another example, since 2004 KIND has packaged its

Almond & Coconutbar in the packagedepicted below (the "KIND A&C

Trade Dress").

The KIND A&C Trade Dress is comprised of the distinctive arrangement

and combination of unique elements in combination with shared elements

in the KIND Shared Trade Dress above. The segments at both edges of
the package are dark brown in color. Along the right portion of the left
most segment, and visible on the face of the package, appear the terms
"NATURAL INGREDIENTS YOU CAN" in gold, sans-seriffont. The

1/16 inch vertical line along the right edge of the left-most segment is gold
in color. Within the horizontal black-colored band bisecting the
transparent rectangular segment is the flavor identifier, "ALMOND &

COCONUT," in white, sans-serif letters and a stylized ampersand. The

product line identifier "FRUIT & NUT" appears within the black-colored

segment in white, sans-serif font, and below, visible on the leading face of
the package, in smaller sans-serif font appear the following product
attributes, each accompanied by a stylized check-mark: "ALL NATURAL
/ NON GMO," "GLUTEN FREE," "LOW GLYCEMIC," and "GOOD
SOURCE OF FIBER." Since 2011, KIND has achieved over $72.6
million in measured outlet retail sales of Almond & Coconut bars in the
distinctive KIND A&C Trade Dress.

c.

As a third example, since 2010 KIND has packaged its

Cranberry Almond bar in the package depicted below (The "KIND CA+
Trade Dress").

The KIND CA+ Trade Dress is comprised of the distinctive arrangement

and combination of unique elements in combination with shared elements

in the KIND Shared Trade Dress above. The segments at both edges of
the package are burgundy in color, with a repeating pattern overlay of

white "plus" symbols. The 1/16 inch vertical line along the right edge of
the left-most segment is gold in color. Within the horizontal black-colored

10

band bisecting the transparent rectangular segment are the flavor

identifier, "CRANBERRY ALMOND," and the term "ANTIOXIDANTS"

in white, sans-serif font. Immediately to the right of the flavor identifier,

and superimposed on the vertical black-colored band, is a white plus

symbol over a rectangle in the same burgundy color as the edges of the
package. The product line identifier "PLUS" appears within the black-

colored segment in gold, sans-serif font, and below, visible on the leading
face of the package, in smaller white sans-serif font appear the following
product attributes, each accompanied by a stylized check-mark: "50% DV
ANTIOXIDANTS VITAMINS A, C AND E," and "ALL NATURAL /
NON GMO." Since 2011, KIND has achieved over $62.6 million in

measured outlet retail sales of Cranberry Almond bars in the distinctive

KIND CA+ Trade Dress.

d.

As a final example, since 2010 KIND has packaged its

Peanut Butter Dark Chocolate bar in the package depicted below (the
"KIND PBDC+ Trade Dress")

The KIND PBDC+ Trade Dress is comprised of the distinctive

arrangement and combination of unique elements in combination with

shared elements in the KIND Shared Trade Dress above. The segments at

11

both edges ofthe package are light brown in color, with a repeating
pattern overlay ofwhite "plus" symbols. The 1/16 inch vertical line along
the right edge of the left-most segment is gold in color. Within the

horizontal black-colored band bisecting the transparent rectangular

segment is the flavor identifier, "PEANUT BUTTER DARK

CHOCOLATE," and the term "PROTEIN" in white, sans-serif font.

Immediately to the right of the flavor identifier, and superimposed on the

vertical black-colored band, is a white plus symbol over a rectangle in the

same light brown coloras the edges of the package. The product line

identifier "PLUS" appears within the black-colored segment in gold, sansserif font, and below, visible on the leading face of the package, in smaller
white sans-serif font appearthe following product attributes, each
accompanied by a stylized check-mark: "7g PROTEIN, "ALL NATURAL
/ NON GMO," "GLUTEN FREE," and "LOW GLYCEMIC." Since

2011, KIND has achieved over $88.3 million in measured outlet retail
sales of Peanut Butter Dark Chocolate bars in the distinctive KIND
PBDC+ Trade Dress.

18.

Furthermore, KIND owns Federal Trademark Registration No. 3,882,221,

covering elements of its packaging trade dress, for "healthy snacks, namely, nut and seed
based snack bars; processed fruit-and-nut-based food bars, nut based snack food bars,
fruit based snack food bars also containing nuts, grains, cereals and dried fruit." KIND

also owns Federal Trademark Registration No. 4,097,493, covering elements of its
packaging trade dress, for, inter alia, "nutrition bars, namely, nut and seed based snack

12

bars; processed fruit-and-nut-based food bars, nut based snack food bars, fruit based

snack food bars also containing nuts, grains, cereals and dried fruit." (Together, the
"KIND Registered Trade Dress.")
19.

The KIND Registered Trade Dress, the KIND Shared Trade Dress, and

each of the trade dresses of the individual flavors, including the KIND A&A Trade Dress,
KIND A&C Trade Dress, KIND CA+ Trade Dress, and KIND PBDC+ Trade Dress, are

all referred to collectively herein as the "KIND Trade Dress."

20.

The success of KIND bars stems not only from the high quality of the

products, but also from the distinctive brand image communicated by the KIND Trade

Dress. Indeed, the KIND Trade Dress is among the most significant ways in which
consumers identify the brand on shelves, and is thus among KIND's most valuable
intellectual property.

KIND'S ADVERTISING AND MARKETING

21.

KIND has expended considerable resources advertising and promoting its

products using the distinctive KIND Trade Dress. The KIND Trade Dress is featured

prominently in advertisements, on KIND's website, in experiential marketing programs,

and in point-of-sale promotional materials. KIND's extensive advertising and promotion,
featuring the KIND Trade Dress, has supported the explosive growth of the KIND brand.

Since 2011 these programs have generated more than 1 billion media impressions.

Additionally, KIND has engaged in widespread experiential marketing efforts,

distributing more than 25 million KIND bars as samples. In 2004, KIND spent
approximately $300,000 advertising KIND bars including sales promotion and trade

13

spending. This figure rose to more than $70 million in 2014. Altogether, since 2004,
KIND has spent over $150 million marketing its healthy snack bars.

22. KIND bars have received multiple awards, including All You - Snack Star,

Climbing - Editor's Choice (2014), Fitness - Best Pre-Workout Snacks (2014), Outside
- Travel Awards (2014), Prevention - 125 Cleanest Packaged Goods (2014), SELFBest Energy Bar (2014), Men's Health - Best Breakfast Bar(2014), Men's Health Best Energy Bar(2014), Women's Health - Supermarket Stars (2014), Prevention -

Best Bar (2011), Natural Products Expo - Best New Product (2008), and many others.
KIND bars also have received extensive unsolicited media coverage in major
publications such as TIME, BusinessWeek, Food &Wine, Oprah's O Magazine, Good
Housekeeping, Ladies Home Journal, Progressive Grocer, Health Magazine, and The
New York Times. KIND bars have been featured on national television programs such

as The Today Show, Good Morning America, and the Rachel Ray Show. Through
these media outlets, KIND bars have received in excess of 7.5 billion earned media

impressions during the past four years.

SALES OF KIND BARS

23. KIND bars are the fastest growing product in the nutritional snack bar

category and can be found in more than 150,000 locations. During the 52 weeks ending
December 28, 2014, sales of KIND bars in SPINS/IRI outlets enjoyed a growth rate of

62% while KIND's closest competitor in the space, LARABAR, saw sales grow by
20%. Fourteen ofthe top 15 performing products in the healthy snack bar segment are
KIND products.

14

24. Growth in the sales of KIND bars has led to significantrevenue for KIND.
In 2014 alone, KIND sold approximately 200 million KIND bars in measured retail

outlets, resulting in retail sales of approximately $300 million. Since 2011, KIND sold

more than 450 million KIND bars in measured retail outlets, with aggregate retail sales
well in excess of $625 million.

25.

This rapid growth has come primarily through KIND's leadership in

rapidly expanding the healthy snack bar market. Every day KIND is reaching new
consumers who have never tried a healthy snack bar before. This rapidly expanding

market has not gone unnoticed by KIND's competition, and KIND has seen a steady
stream of new product entrants with offerings similar to KIND's innovative products; a
development KIND welcomes so long as competitors strive to compete on the merits of
their products and not on consumer deception.

DEFENDANTS' WRONGFUL CONDUCT

26.

Flagstone is a manufacturer and distributor of private label healthy snacks.

Hagstone recently released and began selling a private label snack bar product underits
NATURE'S HARVEST label. Flagstone offers this product in at least three varieties, in

the packaging depicted at left in the image on the following page.

15

27.

As shown above, the new NATURE'S HARVEST trade dress mimics the

distinctive overall impression of KIND's packaging trade dress, appropriating several key
aspects of KIND's unique packaging to create a confusingly similar overall impression.
Among these striking similarities are (1) a transparent, rectangular front panel in

essentially identical proportion to the remaining package; (2) a horizontal stripe of

essentially identical proportion bisecting the transparent front panel and containing the
flavor of the bar in text; (3) an opaque panel, offset to the side of the package, containing
the brand identifier above a bulleted list of many of the bar's key healthful attributes; (4)

a thin vertical line in a contrasting color, marking the border between the transparent
panel and the brand-identifier panel; (5) opaque vertical bands, or end caps, at either edge

of the product package; and (6) a roughly identical slender shape. The overall impression
conveyed by the NATURE'S HARVEST trade dress is confusingly similar to the overall
impression created by KIND's distinctive package.

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28.

Each Flagstone wrapper also closely replicates the prominent endcap color

on the KIND A&A Trade Dress, the KIND A&C Trade Dress, and the KIND AC Trade

Dress, respectively.
29.

The confluence of similarities results from intentional mimicry and

reflects a bad faith intent to trade on KIND's hard-earned good will.

30.

In May of 2014, KIND became aware of Flagstone's efforts to market its

own healthy snack bars to retailers as a potential private label offering. In connection
with these efforts, Ragstone created a "sell-sheet" (see images below) depicting snack

bars packaged in wrappers that copied KIND's distinctive packaging.

Product Details
Ingredient*

31.

Product Benefits:

KIND notified Ragstone that the images Ragstone was using to market its

private label product infringed KIND's rights in its unique package, and Flagstone
confirmed that the images were concepts only, that it would immediately discontinue use

of each image in its marketing efforts, and that it would take KIND's concerns into

17

consideration in the future. In short, there is no doubt that Flagstone was fully aware of
KIND's rights and concerns since at least May of 2014. Despite its prior assurances,
Ragstone has now launched the NATURE'S HARVEST snack bars in infringing
packaging.
32.

Ragstone's unlawful conduct is likely to create consumer confusion which

will cause serious and irreparable harm to KIND. This conduct, if not enjoined, could
eviscerate the goodwill KIND has spent years carefully cultivating for its brand.

LIKELIHOOD OF CONFUSION

33.

Due to the striking similarity between the KIND Trade Dress in general,

the three Individual KIND Trade Dresses in particular, and the NATURE'S HARVEST

trade dress, there is a high likelihood that consumers will buy a NATURE'S HARVEST

bar under the mistaken belief that it comes from, is manufactured by, sponsored by, or is
associated or affiliated with, KIND.

34.

As a private label version of KIND's products, the NATURE'S

HARVEST bars compete directly with KIND products in the exact same channels of
commerce.

35.

Indeed, Flagstone clearly intends for its private label NATURE'S

HARVEST bars to compete directly with KIND bars because it has mimicked three of
KIND's most successful ingredient combinations, and has demonstrated its intention

through its "sell-sheet" to mimic three others:

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NATURE'S HARVEST

Flagstone Sell-Sheet

Flavor

Flavor

Almond & Coconut

Almond & Coconut

Almond & Coconut

Cranberry Almond

Cranberry & Almond

Cranberry Almond

Peanut Butter Dark

Peanut Butter Dark

Peanut Butter Dark

Chocolate

Chocolate

Chocolate

KIND Flavor

Dark Chocolate Cherry

Dark Chocolate Cherry

Cashew

Cashew

Fruit & Nut Delight

Fruit & Nut Delight

Dark Chocolate Nuts &

Dark Chocolate Nuts &

Sea Salt

Sea Salt

Ragstone also highlights unique nutritional benefits and attributes that match the imitated
KIND flavor. For example, on its Cranberry Almond flavor, Ragstone calls out the
addition of "50% Daily Value of Antioxidant Vitamins A, C & E," which directly
matches the supplement and prominent "50% DV Antioxidants Vitamins A, C and E"
claim for the corresponding KIND bar.
36.

Notwithstanding Flagstone's clear intention to compete directly with

KIND, its products are not equivalent, as they use less expensive and lower quality

sweetening agents, use considerably more sodium, and retail for substantially less per
bar.

37.

Relatively low-cost snack items, including KIND bars (about $2 per bar),

are often impulse purchases. In that setting, deceptively similar trade dress is likely to
cause confusion. Confusion is further likely because consumers of these products are
more likely to rely on signals of familiarity contained in a product's trade dress and are

unlikely to exercise a great deal of care to ensure the source of the product before making

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a purchase, risks that are particularly acute where a competitor seeks to mimic so many of
the signals consumers use as shortcuts in identifying a favored brand.

IRREPARABLE HARM

38.

Ragstone has adopted a trade dress for its NATURE'S HARVEST bar

products that is likely to confuse consumers into thinking they are buying a product that
comes from or is associated with KIND as the maker of KIND bars.

39.

If Ragstone is permitted to continue or expand sales of its NATURE'S

HARVEST bars in their infringing trade dress, KIND will suffer irreparable harm. A
material proportion of consumers will mistakenly believe they are buying a KIND

product, or a private label product made, sponsored or approved by KIND, when they are
actually buying a Ragstone product. The goodwill that KIND has spent considerable

time, effort and resources to cultivate will be eroded. Existing KIND customers may be
disappointed with the quality of products that they mistakenly believe are made by
KIND, and therefore may turn away from KIND products. Potential new customers,

mistakenly thinking they are buying KIND products, may also be disappointed and
decide not to buy KIND bars in the future.

40.

Exacerbating these harms is the fact that, as a self-proclaimed leader in the

private label market, Flagstone already enjoys broad distribution among many of the
nation's largest food retailers and, unless enjoined, has the apparent ability to flood
market channels with its confusingly similar product.

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COUNT ONE

(Trade Dress Infringement and False Designation of Origin

Under Section 43(a) of the Lanham Act)

41.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

42.

As noted above, the NATURE'S HARVEST snack bar products feature

trade dress that is confusingly similar to the KIND Trade Dress (including the KIND
Shared Trade Dress, the KIND Registered Trade Dress, the KIND A&A Trade Dress, the
KIND A&C Trade Dress, the KIND CA+ Trade Dress, and the KIND PBDC+ Trade
Dress).

43.

Defendants' acts of trade dress infringement, unless restrained, will cause

great and irreparable injury to KIND and to the business and goodwill represented by the
KIND Trade Dress, in an amount that cannot be ascertained at this time, leaving KIND

with no adequate remedy at law.

44.

Defendants' deceptive marketing and sales practices in connection with

their NATURE'S HARVEST bar products in the present packaging constitutes false

designation of origin and infringement of the KIND Trade Dress in violation of Section
43(a) of the Lanham Act, 15 U.S.C. 1125(a).

45.

By reason of the foregoing, KIND is entitled to injunctive relief against

Defendants, restraining them from any further acts of trade dress infringement, false

designation of origin and unfair competition, and, after trial, recovery of any damages (to
the extent calculable) proven to have been caused by reason of Defendants' aforesaid
acts.

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COUNT TWO

(Trade Dress Infringement Under New York Law)

46.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

47.

Defendants' acts, as described above, constitute trade dress infringement

under N.Y. Gen. Bus. Law 360-k.

COUNT THREE

(Registered Trade Dress Infringement

Under Section 32 of the Lanham Act)

48.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

49.

The trade dress of KIND bars is federally registered with the United States

Patent and Trademark Office as Trademark Registration No. 3,882,221 (below on the

left) and Registration No. 4,097,493 (below on the right).

KIND

50.

The packaging trade dress of KIND bars is cunently used in commerce, is

non-functional, is inherently distinctive, and also has acquired substantial secondary

meaning in the marketplace.

51.

Flagstone's NATURE'S HARVEST bar product features a trade dress that

is confusingly similar to the trade dress of KIND bars, and Flagstone has already
commenced selling the NATURE'S HARVEST product in the market.

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52.

Flagstone's manufacture, distribution, sale and promotion of its

NATURE'S HARVEST bar products thus is likely to cause confusion and mistake and to

deceive retailers and consumers as to the source, origin or sponsorship of these products.
Consumers seeing NATURE'S HARVEST bar products in the marketplace likely will
believe that they are sponsored by, associated with, or otherwise affiliated with KIND or
vice versa.

53.

Any confusion stemming from the NATURE'S HARVEST bar's

confusingly similar trade dress would cause irreparable injury to both the sales and
reputation of KIND as well as the goodwill developed by KIND bar's trade dress. The

extent of this harm cannot be ascertained at this time, leaving KIND no adequate remedy
at law.

54.

As such, Ragstone's deceptive marketing and sales practices in

connection with its NATURE'S HARVEST bar products constitute infringement of the
Registered KIND Trade Dress in violation of Section 32 of the Lanham Act, 15 U.S.C.
1114.

55.

By reason of the foregoing, KIND is entitled to injunctive relief against

Defendants, restraining them from any further acts of trade dress infringement and, after

trial, recovery of any damages (to the extent calculable) proven to have been caused by
reason of Defendants' aforesaid acts.
COUNT FOUR

(Deceptive Acts and Practices Under New York Law)

56.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

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57.

The acts of Defendants as described above constitute deceptive acts and

practices in violation of N.Y. Gen. Bus. Law 349-50.

COUNT FIVE

(Unfair Competition under New York Law)

58.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

59.

The acts of Defendants as described above constitute unfair competition in

violation of KIND's rights under the New York State common law, as preserved by N.Y.
Gen. Bus. Law 360-O.
COUNT SIX

(Trade Dress Dilution under New York Law)

60.

KIND repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

61.

The KIND Trade Dress is used in commerce, is non-functional, is

inherently distinctive, and has acquired substantial secondary meaning in the

marketplace.

62.

Defendants' distribution, sale and promotion of products employing the

challenged trade dress is likely to dilute and detract from the distinctiveness of the KIND
Trade Dress.

63.

Defendants' acts of trade dress dilution, unless restrained, will cause great

and irreparable injury to KIND and to the business and goodwill represented by the
KIND Trade Dress, in an amount that cannot be ascertained at this time, leaving KIND

with no adequate remedy at law.

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64.

The acts of Defendants as described above constitute trade dress dilution

in violation of N.Y. Gen. Bus. Law 360-1.

PRAYER FOR RELIEF

WHEREFORE, KIND respectfully prays:

A.

That Defendants and all those in active conceit or participation

with them (including, but not limited to, their officers, directors, agents, servants,
wholesalers, distributors, retailers, employees, representatives, attorneys, subsidiaries,

related companies, successors, assigns and contracting parties) be temporarily,

preliminarily and permanently enjoined and restrained from:

i.

manufacturing, distributing, shipping, advertising,

marketing, promoting, selling or otherwise offering for sale NATURE'S

HARVEST or any other bar products in the challenged trade dress or any
other trade dress that is confusingly similar to that of KIND bars or any of
KIND's other products;
ii.

representing, by any means whatsoever, that any products

manufactured, distributed, advertised, offered or sold by Defendants are

KIND's products or vice versa, and from otherwise acting in a way likely
to cause confusion, mistake or deception on the part of purchasers or
consumers as to the origin or sponsorship of such products; and
B.

That Defendants and all those in active conceit or participation

with them (including, but not limited to, their officers, directors, agents, servants,
wholesalers, distributors, retailers, employees, representatives, attorneys, subsidiaries,

related companies, successors, assigns and contracting parties) take affirmative steps to

25

dispel such false impressions that heretofore have been created by their use of the
challenged trade dress, including, but not limited to, recalling from any and all channels
of distribution any and all infringing products and promotional materials.

C.

That Defendants account to KIND for their profits and any

damages sustained by KIND, to the extent calculable, arising from the foregoing acts of
trade dress infringement and dilution, false designation of origin and deceptive acts and
practices.

D.

That, in accordance with such accounting, KIND be awarded

judgment for three times such profits or damages (whichever is greater), pursuant to
15 U.S.C. 1117 and N.Y. Gen. Bus. Law 349(h).

E.

That KIND have and recover its costs, including its reasonable

attorneys' fees and disbursements in this action, pursuant to 15 U.S.C. 1117 and
N.Y. Gen. Bus. Law 349(h).

F.

That KIND be awarded punitive damages pursuant to the law of

the State of New York in view of Defendants' intentional and willful trade dress and

trademark infringement and other conduct.

G.

That Defendants deliver up for destruction all infringing products

in their possession or control and all means of making the same in accordance with 15
U.S.C. 1118.
H.

That Defendants file with the Court and serve on counsel for

KIND within thirty (30) days after entry of any injunction issued by the Court in this

action, a sworn written statement pursuant to 15 U.S.C. 1116(a) setting forth in detail

26

the manner and form in which Defendants have complied with any injunction which the
Court may enter in this action.

I.

That KIND have such other and further relief as the Court may

deem just and proper.

JURY TRIAL DEMAND

KIND demands a trial by jury on all claims as to which a jury trial may be had.

Dated: New York, New York

February 23, 2015

DEBEVOISE & PLIMPTON LLP

Ivid H. Bernstein

(dhbernstein @debevoise.com)
Jyotin Hamid
(jhamid @debevoise.com)
Charles W. Baxter

(cwbaxter@debevoise.com)
919 Third Avenue

New York, New York 10022

(212) 909-6696 (telephone)

(212) 521-7696 (facsimile)
Attorneysfor Plaintiff KIND LLC

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