This appeal presents a variety of questions involving trade dress and trademark rights. The parties are competitors in the ice cream novelty market. The principal question in this controversy is whether the trade dress of Kraft's Polar B'ar infringes the trade dress of Isaly's Klondike bar. The district court answered "Yes" to this question. 619 F.Supp. 983. We affirm, holding that the district court's findings were not clearly erroneous and that the court's conclusions of law were correct.
The plaintiff in this action, the Isaly Company, Inc., ("Isaly"),
Isaly began in the last century as a family-owned dairy business operating in Eastern Ohio and Western Pennsylvania. In 1928 Isaly started making and selling five ounce, chocolate-covered, stickless ice cream bars under the name "Klondike". Isaly now sells three versions of the Klondike bar: plain, crispy, and chocolate/chocolate. The plain Klondike bar has been wrapped in pebbled foil featuring the colors silver, blue, and white since the 1940's. Since at least 1956 the wrapper has featured a 3 × 3 inch panel of silver, white, and blue, the words "Isaly's" and "Klondike", and the figure of a polar bear.
In 1978 Isaly revised the wrapper of the Klondike bar maintaining, however, the impression the original wrapper conveyed. The colors, images, and words on the wrapper remained the same, but "Klondike" was emphasized, "Isaly's" was reduced in size, and the stance of the polar bear was altered. Since 1978, the wrapper has remained the same. The plain Klondike bar is wrapped in pebbled foil presenting a 3 × 3 inch silver panel featuring a white polar bear on all fours before a sunburst design. Both the polar bear and the sunburst are outlined and highlighted with royal blue. Below the bear is the word "Klondike", written in large white letters outlined in royal blue. "Isaly's" appears in small blue letters to the right of the bear. The crispy and chocolate/chocolate wrappers are identical except that those wrappers use the colors yellow and brown respectively in place of the white color used on the plain wrapper.
Isaly began selling the Klondike in a six-pack arrangement in 1963, and between 1963 and 1978 some six-packs were offered in trays overwrapped in clear plastic. Since 1978, all six-packs have been sold in transparently overwrapped trays with a double layer of three bars, presenting the Klondike wrapper three times. The trays are silver and feature a large numeral "6" on the side. The end panels of the Klondike trays display a copy of the appropriate wrapper design depending on the version of the bar contained in the tray.
Until 1978, Isaly sold the Klondike bar in a tri-state area composed of Western Pennsylvania, Eastern Ohio, and Northern West Virginia. Isaly advertised in newspapers and in point-of-sales materials in stores, both of which featured the polar bear emblem found on the bar's wrapper. Isaly also advertised on television in a commercial featuring a polar bear and prospector in a supermarket.
In 1978, Isaly began to investigate the possibility of expanding the market for the Klondike bar. Isaly decided to introduce
The introduction of the Klondike bar into the Florida market in early 1979 was highly successful and Kraft was well satisfied. Kraft had previously been unsuccessful with its ice cream novelty line and viewed the Klondike bar as a way to change that pattern. In October 1979, Kraft informed Isaly that it was interested in purchasing Isaly or having Isaly package its bars for Kraft under the Sealtest name. Isaly rejected these proposals, suggesting instead that Kraft expand its distribution of the Klondike bar. Kraft stated, however, that it was reluctant to expand distribution without a proprietary interest in the product.
In late 1979, Kraft began to develop its own five ounce chocolate-covered ice cream bar. Kraft attempted to duplicate the exact size and taste of the Klondike bar. Kraft chose the name "Polar B'ar" after finding that name on a list of unused trademarks. A predecessor of Kraft, Southern Dairies, Inc., had sold an ice cream bar under that trademark from 1929 to 1932, and periodically renewed the trademark registration. Through merger, Kraft acquired it.
Kraft employed two firms to design the packaging for the Polar B'ar product, making clear to these firms that the functional features of the Polar B'ar package were to resemble as closely as possible the Klondike bar package. The bars were to be wrapped in foil and sold in six-pack trays overwrapped in transparent plastic. Kraft supplied these design firms with samples of the Klondike packaging to aid them in their efforts.
The designers presented Kraft with a number of different wrapper designs but ultimately chose the one Isaly now challenges. That wrapper presents a 3 × 3 pebbled silver foil panel with a white polar bear standing on all fours contained within a colored triangle in the bottom right corner. "Polar B'ar" is written in large colored block letters diagonally across the center of the bar. "Sealtest" is written in script in a red box in the upper left corner, and the phrase "made with real milk chocolate" appears in a red circle in the bottom left corner of the panel.
In 1980 Kraft sold Polar B'ars in two forms: plain and "crunchy". The colors of the triangle and block letters on the wrappers varied with each version. Plain wrappers used royal blue and "crunchy" wrappers used red. Later, Kraft introduced four new versions of the bar: chocolate, mint, heavenly hash, and peanut butter, using the colors brown, green, light blue, and golden brown respectively.
As planned, Kraft sold Polar B'ars in a six-pack tray overwrapped in clear plastic. The tray employs a silver background and displays a large numeral "6" between the brand name and the product description. The end panels of Kraft's tray feature a large white polar bear and the words "Polar B'ar" in large block letters against a background colored to correspond with the version of the bar contained in the tray. Kraft promoted the bar with television and newspaper advertising. Its television commercial featured the figure of a bear. Then came a bear's roar when the camera shifted to the polar bar wrapper.
Kraft was the exclusive distributor of the Klondike bar in Florida from 1979 to 1982. In February 1982 Kraft notified Isaly in writing of its intention to terminate its distribution of Klondike as of April 1982. In May 1982 Isaly initiated this suit. Isaly asserted that Kraft's packaging: (1) constituted
I. Trade Dress Infringement
Kraft's first contention on appeal is that the district court erred in finding Kraft guilty of trade dress infringement. Kraft does not contend that the district court applied the wrong test in making this finding, but rather argues that the district court misapplied the proper test.
Section 43(a) of the Lanham Act states in relevant part:
This Court has held that Section 43(a) creates a federal cause of action for trade dress infringement.
As the district court below held, to prevail on a trade dress infringement claim under § 43(a), the plaintiff must prove three elements: 1) its trade dress is inherently distinctive or has acquired secondary meaning, 2) its trade dress is primarily non-functional, and 3) the defendant's trade dress is confusingly similar.
A. Inherent Distinctiveness or Secondary Meaning
At the outset, the plaintiff must establish that its trade dress is inherently distinctive or has acquired secondary meaning.
The district court found that at the time Polar B'ar was introduced in 1980, the trade dress of Isaly's Klondike was inherently distinctive and had acquired secondary meaning. Kraft challenges both of these findings. Because we hold that the district court's finding with respect to inherent distinctiveness is not clearly erroneous, we need not address the secondary meaning issue.
In assessing the inherent distinctiveness of the Klondike trade dress, the district court considered the factors enunciated by this Court in Brooks Shoe Manufacturing Co. v. Suave Shoe Corporation,
Unlike the "V" or "7" in Brooks, the Klondike trade dress is not a basic shape or common design. Rather, as the district court found, the Klondike wrapper with its square size, bright coloring, pebbled texture, polar bear and sunburst images, and distinctive style of printing is "a complex composite of size, color, texture and graphics.... [creating] a distinctive
Kraft challenges this finding on two grounds. It first argues that the silver foil, the color royal blue, and the arctic sun and polar bear images all connote cold and are therefore not inherently distinctive when used in connection with ice cream novelties. Kraft also argues that third parties have used these same elements in connection with their packaging of ice cream products and frozen desserts. Kraft asserts that when viewed in context of the Brooks factors, these third party uses indicate that the Klondike trade dress is not unique and is a mere refinement of a commonly-adopted form of ornamentation for ice cream products. The district court rejected both of these arguments. That ruling was not clearly erroneous.
Trademarks and trade dress may be classified as generic, descriptive, suggestive, or arbitrary.
Isolated or piecemeal third party uses of various elements of the Klondike trade dress do not detract from the distinctiveness of the overall impression conveyed by the combination of those elements on the Klondike wrapper. Indeed, third party use of one or more suggestive or arbitrary elements of a plaintiff's trade dress renders that trade dress indistinct only if the third party use is so extensive and so similar to the plaintiff's that it impairs the ability of consumers to use the trade dress of the products to identify their source.
The district court did not commit clear error in ruling that the Klondike trade dress was inherently distinctive and therefore protectable without a showing of secondary meaning.
Trade dress is protectible under section 43(a) only if it is primarily nonfunctional.
That individual elements of packaging are functional does not, however, render the package as a whole unprotectible.
C. Likelihood of Confusion
"[T]he touchstone test for a violation of § 43(a) is the "likelihood of confusion" resulting from the defendant's adoption of a trade dress similar to the plaintiff's."
The district court evaluated these factors, weighed them carefully, and found that Kraft's trade dress creates a likelihood of confusion. Kraft rejects this finding arguing that the district court misapplied the above test. A finding of likelihood of confusion is a finding of fact and is reviewed by this court under the clearly erroneous standard.
1. Strength of the Trade Dress
The strength of the Klondike trade dress determines the scope of protection it will receive: strong trade dress receives strong protection, and weak trade dress receives weak protection. The strength of a particular trade dress is determined by a number of factors that establish its standing in the marketplace.
In analyzing the scope of protection a particular trade dress warrants, a court must first consider the type of trade dress involved. As noted above, trade dress may be classified as generic, descriptive, suggestive, or arbitrary, and the scope of protection increases as the trade dress moves toward the arbitrary end of the spectrum. Isaly's trade dress is composed of a number of elements suggesting the coldness of the Klondike bar. The Klondike trade dress is therefore mainly suggestive. Although there is no clear pattern in this circuit as to what type of protection suggestive trade dress warrants under § 43(a)
The second scope-of-protection factor is the extent of third party use. As noted in the discussion of inherent distinctiveness, a number of third parties have used various elements of the Klondike trade dress. The record indicates that, in connection with the sale of frozen desserts, at least eight third parties have used a polar bear image, and that numerous third parties have used silver foil, an arctic sun image, or the royal
Our review of the evidence leads us to conclude that were we to make the determination as to the strength of Isaly's trade dress de novo, we would accord that trade dress moderate, as opposed to either strong or weak, protection.
2. Similarity of Design
The similarity of design test has been described as "`really nothing more than a subjective eyeball test.' ... The similarity of design is determined by considering the overall impression created by the mark as a whole rather than simply comparing individual features of the marks."
Kraft strenuously objects to this finding. Kraft asserts that in making its finding of similarity of design the court disregarded the word marks "Sealtest", "Polar B'ar", "Isaly's", and "Klondike". Kraft also argues that a comparison of the packages reveals many differences including a different overall impression.
Kraft is correct in asserting that the presence of dissimilar word marks lessens the possibility of a finding of similarity of
Even a cursory reading of the district court's order makes clear that in analyzing the overall appearance of the trade dress of the products the district court did not disregard the dissimilar word marks. Indeed, the court even mentioned that each wrapper displayed "the product name printed in large block letters, accompanied by the company name (Sealtest or Isaly's) in much smaller script lettering".
Kraft next argues that the design and color of the trade dress of each product are simply not similar. Kraft points again to the dissimilar word marks and also to the differences between the modern design of the Polar B'ar trade dress and the old-fashioned tone of the Klondike trade dress. In assessing Kraft's contention, it is important to remember that, regardless of the ready accessibility of the exhibits to the reviewing court and the ability of this Court to see as well as the district court, the district court's finding that the designs are similar is still reversible only for clear error.
Viewing the trade dress as a whole, the overall impression conveyed by each is similar. An inspection of the wrappers of the plain Klondike and the plain Polar B'ar
3. Similarity of the Products
That the products involved are similar is evidence tending to prove the existence of a likelihood of confusion.
4. Similarity of Retail Outlets and Purchasers
Likelihood of confusion is more probable if the products are sold through the same channels to the same purchasers.
5. Similarity of Advertising Media
If the plaintiff and defendant both use the same advertising media, a finding of likelihood of confusion is more probable.
6. Defendant's Intent
Kraft's intent in adopting the Polar B'ar trade dress is a critical factor because a finding that Kraft adopted the trade dress with the intent of deriving benefit from the reputation of Isaly's Klondike may alone be enough to justify the inference that there is confusing similarity.
In early 1979, Kraft began distributing the Klondike bar for Isaly in Florida. The introduction of the Klondike bar in Florida was surprisingly successful. Kraft had been searching for an appropriate ice cream novelty product, and after witnessing the success of the Klondike bar, Kraft approached Isaly with an offer to either buy Isaly or have Isaly pack Klondike bars for Kraft under the Sealtest label. Isaly rejected this offer, proposing instead that Kraft expand its distribution of the Klondike bar. Kraft rejected that offer.
As a result of the distribution relationship, Kraft learned of Isaly's expansion plans for the Klondike bar and of information vital to the successful sale of an ice cream novelty like the Klondike bar. In late 1979, Kraft began developing its own five ounce, stickless, chocolate-covered ice cream bar. Kraft attempted to develop a bar that was, in almost all respects, identical with the highly successful Klondike bar.
Kraft chose to name its new product "Polar B'ar", a name that conveys a double meaning: "polar bear" and "cold bar". At the time it chose the name, Kraft was aware that the Klondike wrapper featured a polar bear. Moreover, prior to the time Kraft selected the name for its product, Isaly had undertaken some promotional and other efforts to develop an association
Kraft retained two design firms to design the packaging for the Polar B'ar. It is undisputed that Kraft requested these firms to copy the functional features of the Klondike packaging, such as the six-pack tray, the dead fold foil wrapper, and the clear plastic overwrap. To help achieve this goal, Kraft supplied the design firms with samples of the Klondike packaging and wrapper. It is also clear that, given the name Kraft had chosen for its product, the use of a polar bear image on the Polar B'ar wrapper was a foregone conclusion.
The design firms offered Kraft a number of wrapper prototypes employing a variety of graphic designs. Kraft chose the design that Isaly is now challenging. The record reveals that Kraft knew of the distinct possibility that the wrapper design it chose infringed the Klondike trade dress. But Kraft never sought an opinion from legal counsel on that issue.
Isaly argues that the unmistakable import of this evidence is that Kraft chose deliberately to come as close to the total image of the Klondike bar as possible. According to Isaly, even though Kraft may have intended to stay within legal bounds, it copied the Klondike bar and functional packaging features exactly and attempted to copy the Klondike trade dress to a sufficient degree that when combined with the other packaging features, Kraft would benefit from the reputation of Isaly's Klondike. Isaly correctly points out that even an intent to come as close as the law will allow is an intent to derive benefit from the other party's reputation and is therefore probative on the likelihood of confusion issue.
Kraft argues, however, that it had no such intent to derive benefit from the reputation of Isaly. Rather, Kraft argues that it copied only those features that it had the right to copy, those that were in the public domain.
There is no question that Kraft's argument finds support in the evidence — as does Isaly's — but even were we to accept Kraft's position, the district court's finding of intent on the part of Kraft to benefit from Isaly's goodwill would be proper. There is nothing unusual about a finding of intent based on circumstantial evidence.
7. Actual Confusion
Actual consumer confusion is the best evidence of likelihood of confusion.
In the instant case, Isaly presented four consumers who testified that they had been confused while making purchases in the market place. Each of the witnesses had notified Isaly of his or her confusion by letter or telephone. Isaly also introduced survey evidence on the actual confusion issue. The district court gave little weight to that survey,
Viewed in the light of the totality of the circumstances, Kraft's protestations are without merit. With respect to Kraft's assertion that the reported instances of confusion are small given the high volume of sales, we note that it takes very little evidence to establish the existence of the actual confusion factor.
Although the evidence of actual confusion is far from overwhelming, the district court's finding of actual confusion is supported by the evidence and is not clearly erroneous.
8. The District Court's Finding
The district court considered each of the above factors and found that, when weighed together, they established a likelihood of confusion. As noted before, our review of that finding is under the clearly erroneous standard. We may therefore overturn the district court's finding only if, after reviewing all the evidence, we are left with the "definite and firm conviction that a mistake has been committed".
A review of the likelihood of confusion factors reveals the following: Isaly's trade dress merits only moderate protection, the design of the trade dress of both parties is somewhat similar, the products are identical, the retail channels and purchasers are identical, the advertising media is identical, Kraft's actions provide the basis for a finding of intent to benefit from Isaly's goodwill, and there is some evidence of actual confusion. Although some fact finders might not have necessarily found a likelihood of confusion, we are compelled to hold that the district court's finding is not clearly erroneous.
The district court's finding that Isaly had established the requisite elements of a trade dress infringement case — inherent distinctiveness, nonfunctionality, and likelihood of confusion — is not clearly erroneous. The district court's verdict in favor of Isaly on the trade dress infringement claim is therefore affirmed.
Kraft next contends that the district court abused its discretion when it refused to rule that laches barred Isaly from relief. To establish laches, a defendant must demonstrate: 1) a delay in asserting a right or a claim, 2) that the delay was not excusable, and 3) that there was undue prejudice to the party against whom the claim is asserted.
In this case, the delay — the time between the point at which Isaly became aware of the Kraft wrapper and packaging and the point at which Isaly filed suit or notified Kraft that its wrapper and packaging infringed that of Isaly — was under two years. Kraft has cited no case in which a delay of less than two years was found to constitute laches. Indeed, the Court of Appeals for the Sixth Circuit recently held that, because the Lanham Act does not contain a statute of limitations, the period for analogous state law claims is to be used as a touchstone for laches.
Not only was Isaly's delay short, but Isaly provided an excuse for the delay that did occur. At the time Isaly became aware of Kraft's infringing packaging, Kraft was serving as Isaly's distributor in Florida. The Florida sales represented a large portion of Isaly's total sales. Threatening Kraft immediately with litigation would have jeopardized the entire Klondike operation.
Kraft contends that given the extensive prejudice it suffered as a result of Isaly's delay, its laches defense is valid notwithstanding the brevity of and the reason for the delay. Kraft argues that it has spent millions of dollars on the development and promotion of the Polar B'ar that it would not have spent had Isaly presented its claim immediately. The district court rejected this argument, finding instead that Kraft would have spent the money even if Isaly had notified it immediately.
The evidence supports the court's findings of reasonable and excusable delay and little or no prejudice from that delay. The court did not abuse its discretion in rejecting Kraft's laches defense.
III. Scope of the Injunction
Kraft next challenges two portions of the district court's injunction. The injunction prohibits Kraft from marketing "a five ounce chocolate covered ice cream bar bearing a label, or contained in a tray bearing a label, which features a picture, drawing or other representation of a polar bear"
A. The Polar Bear
Kraft argues that Isaly has no right to the exclusive use of a polar bear in connection with the sale of ice cream novelties and that the injunction improperly precludes Kraft from using any polar bear image irrespective both of the polar bear's appearance and of whether the overall appearance of the wrapper is confusingly similar to the Klondike wrapper.
Even though Isaly may have had no separate right to the use of the polar bear image in connection with five ounce chocolate-covered ice cream bars, the district court did not abuse its discretion by precluding Kraft from using a polar bear image on the wrappers or trays
B. Royal Blue Color
A more difficult question is presented by Kraft's challenge of that part of the district court's order precluding Kraft from featuring the color royal blue on a textured foil wrapper. The general rule is that "no seller can foreclose others absolutely from using any particular color".
With this standard in mind, we hold that the district court's order is overly broad. That order broadly precludes Kraft from featuring the color royal blue on a textured foil wrapper. We remand this matter to the district court with instructions to tailor a more narrow order.
IV. Monetary Relief
Kraft urges this court to rule that Isaly is, as a matter of law, entitled to recover no damages. We decline this invitation and remand the damages issue to the district court with instructions to consider the issues raised by Kraft involving whether Isaly is entitled to damages.
In a case such as this, a plaintiff may recover a monetary award only if the defendant infringed the plaintiff's rights, and the plaintiff is entitled to a monetary recovery as a result of that infringement. Only after these two elements are established need the court consider the amount the plaintiff should recover. It is clear that the trial established Kraft's infringement; it is also clear that the issue of the amount of damages was reserved for subsequent proceedings.
Because the district court did not clearly address the entitlement issue, that issue is not properly before us in our review of the district court's interlocutory injunctive order.
On cross-appeal, Isaly argues that the district court erred in refusing to cancel Kraft's trademark for the word mark "Polar B'ar". Isaly asserted below and again on appeal that Kraft abandoned this trademark. We agree with Isaly and therefore reverse the ruling of the district court on this issue.
From 1929 to 1932, Southern Dairies, Inc. sold an ice cream novelty under the name "Polar B'ar". Based on that use, Southern was issued trademark registration No. 254,111 for the "Polar B'ar" word mark. The trademark registration was periodically renewed and, through merger, Kraft acquired it. There is no evidence that Kraft or its predecessor used the trademark at any time between 1932 and 1980. In late 1979 or early 1980, Kraft chose to use the name "Polar B'Ar" for its new ice cream novelty after a Kraft new product development manager noticed the name on a list of unused Kraft trademarks. Since 1980, Kraft has used the word mark "Polar B'ar" extensively in connection with the sale of ice cream novelties.
Whether Kraft's Polar B'ar trademark should be cancelled due to abandonment presents a novel question of law. Section 45 of the Lanham Act provides:
Section 14 of the Lanham Act provides for the cancellation of abandoned marks.
For purposes of illustration, we examine what rights Kraft had in the Polar B'ar trademark as of 1978. There is no question that Isaly would have been successful if it had sought to cancel Kraft's Polar B'ar trademark on abandonment grounds in 1978. At that time, neither Kraft nor its predecessor had used the mark since 1932, almost a half a century. Thus, Kraft had discontinued use and the only question would be whether Kraft intended to resume use. Kraft's nonuse establishes a prima facie case of abandonment,
At the outset, Kraft contends that it never intended to abandon the mark. That is, however, irrelevant. The proper inquiry is whether Kraft intended to resume meaningful commercial use of the mark, not whether it intended to abandon the mark.
The only evidence Kraft presented to establish its intent to resume use was that it had renewed the registration of the mark in 1949 and 1969. Given the circumstances, however, this is insufficient to rebut the prima facie proof of abandonment.
Kraft asserts, however, that its resumption of use of the trademark in 1980 precludes our cancelling the registration of the mark. This argument can be broken down into two parts. First, Kraft may be arguing that its use in 1980 negatives the conclusion that as of 1978 Kraft did not intend to resume use. This argument deserves short shrift. That Kraft in fact used the mark in 1980 does not mean that Kraft intended to use the mark in 1978. Not until one of Kraft's personnel noticed the mark on a list of unused trademarks in 1979 did Kraft have any present intention to use the mark. Therefore, our previous conclusion that Isaly would have prevailed had it sought cancellation in 1978 is not changed by Kraft's resumption of use in 1980.
A more difficult question is whether in 1986 Kraft's 1980 use precludes our cancelling its registration because of abandonment. In Mission Dry Corp. v. Seven-Up Co.,
The ruling of the district court denying Isaly's petition to cancel Kraft's trademark registration is therefore reversed.
We affirm the district court's finding that Kraft infringed Isaly's trade dress rights under § 43(a) of the Lanham Act and Isaly's trademark rights under § 32(1)(a) of that act. We also affirm the district court's rejection of Kraft's laches defense. The court's injunctive order is affirmed except for that portion of the order prohibiting Kraft from featuring the color royal blue on an ice cream bar wrapper. With respect to that portion of the order, we reverse and remand the matter to the district court with instructions to tailor a more narrow order that is not inconsistent with this opinion. We reverse the court's conclusion that the Polar B'ar trademark registration should not be cancelled. We do not reach the issue of Isaly's entitlement to damages, we leave the initial determination on that issue to the district court.
AFFIRMED in part, REVERSED in part and REMANDED.
Id. at 1182 n. 5 (citations omitted).
Kraft challenges the district court's finding of secondary meaning. We agree with Kraft that Isaly's extensive sales — 36 million bars in the 1980 fiscal year — and advertising do not necessarily establish secondary meaning. See Aloe Cream Laboratories, Inc. v. Milsan, Inc., 423 F.2d 845, 850 (5th Cir.) (key issue in secondary meaning inquiry is not extent of promotional efforts but their effectiveness), cert. denied, 398 U.S. 928, 90 S.Ct. 1818, 26 L.Ed.2d 90 (1970). But sales and advertising may be considered by the finder of fact in making the secondary meaning inquiry. Conagra, Inc. v. Singleton, 743 F.2d 1508, 1513 (11th Cir.1984). The district court's finding of secondary meaning is not clearly erroneous. See Brooks Shoe Mfg. Co., 716 F.2d at 860 (finding on secondary meaning issue reversible only for clear error).
The existence of secondary meaning leads to greater protection for the Klondike's trade dress. On the other hand, the Klondike trade dress is protectable mainly because it presents a "distinctive visual impression", not because the elements of that trade dress are arbitrary or unusual. As the Fifth Circuit held in Falcon Rice Mill, Inc., a "distinctive visual impression" normally receives weak protection. 725 F.2d at 346. Nonetheless, a "distinctive visual impression" will be protected. See Chevron Chemical Co., 659 F.2d 695. And indeed, a "distinctive visual impression" composed of suggestive elements will be accorded greater protection than one composed of generic or descriptive elements. Cf. Falcon Rice Mill, Inc., 725 F.2d 336.
A finding of similarity is a finding of fact reversible only for clear error. Jellibeans, Inc., 716 F.2d at 842. Sicilia Di R. Biebow & Co. and John H. Harland Co. are not to the contrary. In both of those cases, the appellate court undertook an analysis of the similarity of the designs, but that does not mean that those courts were substituting their own judgment for that of the district court. Rather, each of those appellate courts was simply evaluating the evidence to determine whether the district court's decision was clearly erroneous.
Moreover, the Supreme Court's recent decision in Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), makes clear that an appellate court reviewing a finding of fact is constrained by the clearly erroneous standard even when the finding of fact does not turn on the credibility of witnesses or was such that the reviewing court is in as good a position as the district court to review the evidence.
We note that the manner in which the products are presented to the consumers, in the overwrapped six-pack trays, amplifies the similarity of the trade dress.
A finder of fact has great latitude in determining the appropriate weight to accord particular evidence. Kraft's in-home survey did little to duplicate the circumstances confronting an actual consumer in the marketplace. The district court was therefore well within its discretion when it accorded the Kraft survey little weight.
It is likely that any pointed objection would have been the equivalent of filing a lawsuit as far as the effects on the relations between Kraft and Isaly are concerned. Kraft might well have viewed any objection as a threat of litigation and an attempt to strongarm Kraft into an expanded distribution agreement. Such a threat would undoubtedly chill the relations between Kraft and Isaly.
Our refusal to alter the district court's order in this manner does not give Kraft carte blanche to use trade dress that is confusingly similar to Isaly's as long as Kraft does not offend the literal requirements of the order. To avoid burdening the order with details, the order will be read sufficiently broadly to protect Isaly's rights as recognized in this decision.