## Facts

- Since 1928, Isaly Company, Inc. (later AmBrit, Inc.) made and sold a five-ounce, chocolate-coated, stickless ice cream bar under the name “Klondike.”
- By the mid-20th century, the Klondike bar was sold in pebbled foil using a silver, blue, and white color scheme and a consistent overall look featuring the name “Klondike” and a polar bear image.
- Isaly initially limited Klondike sales largely to the northeastern United States.
- In 1978, Isaly entered an arrangement with Kraft, Inc. for Kraft to distribute Klondike bars in Florida; Isaly remained responsible for most of the advertising in that market. Florida sales began in 1979 and were successful.
- In 1978, Isaly updated aspects of the wrapper while keeping the same overall commercial look of the Klondike packaging.
- Kraft developed its own directly competing five-ounce, chocolate-coated, stickless bar and attempted to make it as similar as possible to Klondike, introducing the product in 1980 under the name “Polar B’ar.”
- Kraft asserted rights in the “Polar B’ar” trademark based on a predecessor’s historic use (1929–1932) and Kraft’s later acquisition of the mark through merger.
- In 1982, Kraft notified Isaly it would terminate distribution of Klondike in Florida, and the parties entered litigation.
- AmBrit/Isaly claimed Kraft’s Polar B’ar wrapper copied Klondike’s packaging and violated the Lanham Act and related state-law protections; AmBrit also sought cancellation of Kraft’s “Polar B’ar” trademark.
- After a bench trial, the district court found the Klondike wrapper trade dress protectable and infringed, entered a permanent injunction, and awarded monetary relief. The district court rejected AmBrit’s request to cancel Kraft’s trademark. Both sides appealed portions of the judgment.

## Issues

1. Whether the Klondike bar’s package appearance was protectable trade dress under Lanham Act § 43(a) (including whether the claimed features were nonfunctional and distinctive through secondary meaning).
2. Whether Kraft’s Polar B’ar packaging was likely to cause consumer confusion as to source, sponsorship, or affiliation.
3. Whether the district court properly granted and framed injunctive relief and monetary relief for trade dress infringement.
4. Whether AmBrit was entitled to cancellation of Kraft’s “Polar B’ar” trademark.

## Decision

- The Eleventh Circuit affirmed the district court’s core liability ruling that Klondike’s trade dress was protectable and that Kraft’s Polar B’ar packaging infringed it.
- The court agreed that the trade dress claim turned on the total look of the Klondike wrapper and that the district court did not clearly err in finding the overall presentation nonfunctional and source-identifying.
- The court upheld the likelihood-of-confusion finding, crediting the close similarity of the competing wrappers, the identical nature of the products, shared retail channels, and evidence supporting an inference of confusion from intentional copying.
- The court largely upheld the permanent injunction and monetary remedies, making only limited adjustments consistent with Lanham Act standards.
- The court affirmed the district court’s rejection of AmBrit’s attempt to cancel Kraft’s “Polar B’ar” trademark.

## Legal Principles

- Trade dress refers to the total image of product packaging used to identify the maker; protection focuses on overall commercial impression rather than isolated elements.
- To prevail under Lanham Act § 43(a) for trade dress, a plaintiff must show (i) the trade dress is nonfunctional, (ii) it is distinctive (either distinctive on its face or through secondary meaning), and (iii) the defendant’s use is likely to cause confusion.
- A feature is functional if it is essential to the use or purpose of the product or affects cost or quality; functional features cannot be monopolized through trade dress.
- Secondary meaning may be shown through long and consistent use, sales success, advertising, and consumer association between the packaging look and a single source in the relevant market.
- Likelihood of confusion is evaluated in light of marketplace realities, including similarity of the trade dresses, the identity of products, channels of trade, purchaser conditions for low-cost items, evidence of actual confusion, and the defendant’s intent.
- Intentional copying of another’s trade dress can support an inference of likely confusion.
- Injunctive relief is a standard remedy for proven trade dress infringement to prevent consumer deception and loss of goodwill; monetary remedies (profits and damages) are equitable and depend on statutory and fairness considerations, including causation and apportionment where appropriate.
- On appeal from a bench trial, factual findings (including confusion, functionality, and secondary meaning) are reviewed for clear error, with substantial deference to the trial court’s fact determinations.

## Conclusion

The Eleventh Circuit held that AmBrit’s Klondike wrapper had a protectable, nonfunctional trade dress that consumers associated with a single source and that Kraft’s Polar B’ar wrapper was sufficiently similar—along with evidence of intentional copying—to support a finding of likely confusion under Lanham Act § 43(a). The court largely affirmed the injunction and monetary relief entered by the district court and also affirmed the denial of AmBrit’s request to cancel Kraft’s “Polar B’ar” trademark.


Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (1986)