These logos don’t look the same! Trademark Infringement?

This post comes from a reddit thread by /u/helpmeredditimbored about an article from the Richmond Times.

Factual Summary

Kroger, an Ohio-based grocer, filed a lawsuit in federal court against a foreign grocery chain Lidl alleging that Lidl’s recent use of the label “Preferred Selection” in the US infringes on Kroger’s use of the federally registered trademark label “Private Selection.”

/u/helpmeredditimbored did some investigation and found a side-by-side comparison of the two labels:

This caused a very minor stir among fellow Redditors, with one person commenting that “that’s not even close.” Some remarked that the case has no merit or were surprised that the lawsuit was able to get into court. Others commented about America’s litigious society and nature.

All-in-all, this case begs the question: “What’s going on here?”

Analysis: Is there a likelihood of confusion?

Here is my take (with some editing):

Under the Lanham Act, the issue is whether the use of a name will have a “likelihood of confusion” with a registered trademark. Courts look at similarities in the marks but also realize that consumers are not necessarily looking at side by side comparisons to try to determine the source of the product.

Krogers appears to be arguing that a consumer goes to the store and sees “preferred selection” and thinks, “oh, that’s the brand that has the reasonable prices” so they buy it. Krogers spent a lot of time and money to create that initial impression in the consumer’s mind.

It looks like they did a survey by an expert to confirm that consumers are getting the brands confused. If that’s truly the case, it’s probably worth the investment to try to protect their territory. Obviously that is what Kroger has decided to do.

It will be an interesting case to follow. But I will probably watch Netflix instead.

Sometimes cases that seem strange on the surface are actually somewhat reasonable. In my view, this is such a case. I’m not saying Kroger is going to win. They certainly have some hurdles (one being that the labels are really not that similar). Instead, I’m saying that winning might help Kroger financially for the indefinite future whereas losing would be a potentially substantial but one time loss. In this case, the potential long-term benefits may outweigh the short-term risks. So if I’m Kroger, it’s at least worth a shot.

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If you would like to ask a question about trademarks, copyrights, or online business, shoot me an email (thelawofthebrand@gmail.com) or a text (702-291-1799) or schedule a meeting.

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Leland Faux
Attorney Leland Faux blogs about trademark, copyright, and online business issues at Law of the Brand. You can submit a question by email to thelawofthebrand@gmail.com.

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