An Unpleasant Coincidence: Cheese & Underwear at the Center of Two New Trademark Battles

Some things just don't go together, and it goes without saying that two of those things are cheese and underwear. This is a safe bet. However, the two recently came together in the trademark world; that is, cheese and underwear connected like two planets aligning only once every millennium.

Last Thursday, Kraft made cheese the focal point of its trademark complaint against Cracker Barrel. And on the same day, Jockey accused Hanes of infringing its mark for women's undergarments.

 Cracker Barrel recently announced that it plans to sell bacon, ham and similar products under the Cracker Barrel mark. However, for almost 60 years, Kraft 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.

"[Crack Barrel] has made clear," Kraft says, "its intent to encroach upon both Kraft's business and trade channels to sell, for the first time, ready-to-eat food products that are complementary to cheese under the CRACKER BARREL mark."

Kraft notes that Cracker Barrel has maintained a distance from Kraft both with respect to trade channels and goods sold. According to Kraft, Cracker Barrel has never sold any products under the Cracker Barrel mark through any trade channels other than its restaurants / country stores and Internet website and has never made significant sales of refrigerated foods under the Cracker Barrel mark in any channel of trade.

"The parties' market separation that has existed for decades will be eliminated," Kraft says of the restaurant's decision to sell Cracker Barrel branded products.

 Not to be outdone by the cheese, underwear took front and center in a trademark complaint filed by Jockey last Thursday. Jockey is accusing Hanes of infringing its Skimmies mark, which Jockey uses in connection with a women's undergarment designed to replace a traditional slip. Hanes sells a similar undergarment under the name Second Skinnies.

"The SKIMMIES® and SECOND SKINNIES marks are very similar in look," Jockey alleges, "and 'SKIMMIES®' and 'SKINNIES' are nearly identical in sound."

Jockey describes the word "Second" as weak, noting that consumers are likely to recall Skinnies over Second Skinnies. This, it is alleged, will increase the likely confusing similarity between Skimmies and Skinnies in look, sound and commercial impression.

"The term 'Skinnies' or 'Second Skinnies' is not descriptive," Jockey goes on to argue. "It functions as, and Hanes uses it as, a trademark."

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