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KILPATRICK TOWNSEND & STOCKTON LLP


LARRY W. McFARLAND (Bar # 129668)
ANTHONY J. MALUTTA (Bar # 193587)
Two Embarcadero Center, 8th Floor
San Francisco, California 94111
Telephone: (415) 576-0200
Facsimile: (415) 576-0300
Email: lmcfarland@kilpatricktownsend.com, amalutta@kilpatricktownsend.com

Attorneys for Plaintiff CLIF BAR & COMPANY

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CLIF BAR & COMPANY, a California


Corporation,
Plaintiff,

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v.

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Case No. 3:15-cv-3258


COMPLAINT FOR TRADEMARK
INFRINGEMENT AND UNFAIR
COMPETITION (INJUNCTIVE
RELIEF SOUGHT)

KILL CLIFF INC., a Delaware corporation,


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Defendant.

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Plaintiff Clif Bar & Company (Clif Bar) complains against Defendant Kill Cliff Inc. (Kill
Cliff) as follows:
JURISDICTION, VENUE AND INTRA-DISTRICT ASSIGNMENT

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1.

Plaintiffs first and second claims arise under the Trademark Act of 1946 (the

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Lanham Act). This Court has jurisdiction over such claims pursuant to 28 U.S.C. 1338(a) and

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1338(b) (trademark and unfair competition), 28 U.S.C. 1331 (federal question) and 15 U.S.C.

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1121 (Lanham Act). This Court has supplemental jurisdiction over the remaining state law claim

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under 28 U.S.C. 1367.

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2.

Venue is proper in this Court under 28 U.S.C. 1391(b) because Defendant transacts

affairs in this district and because a substantial part of the events giving rise to the claims asserted

arose in this district.

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3.

Intra-district assignment to any division of the Northern District is proper under Local

Rule 3-2(c) and the Assignment Plan of this Court as an Intellectual Property Action.

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PARTIES
4.

Clif Bar is a California corporation with its principal place of business at 1451 66th

Street, Emeryville, California 94608. Clif Bar is the creator, manufacturer and distributor of the

extraordinarily well-known CLIF BAR energy bar and other enormously popular food products for

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health, energy, and nutrition. Clif Bar is the owner of all trademark rights in the marks CLIF BAR

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and CLIF for energy bars.

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5.

Defendant Kill Cliff is a Delaware corporation with its principal place of business at

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3715 Northside Parkway, Building 300, Suite 450, Atlanta, Georgia 30327. Kill Cliff offers sports

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recovery drinks and energy bars nationwide, including in this judicial district. Kill Cliff has

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authorized, directed, and/or actively participated in the wrongful conduct alleged herein.

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FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS

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Clif Bars CLIF BAR Energy Bars

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6.

Clif Bar offers a variety of food and beverage products in the sports, energy, and

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nutrition markets under numerous brands, including CLIF BAR energy bars, CLIF ORGANIC

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TRAIL MIX bars, CLIF BUILDERS bars, CLIF CRUNCH granola bars, and CLIF KID food bars.

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Among the many products offered by Clif Bar, the CLIF BAR energy bars are the companys

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flagship and best-selling product and have been for decades.

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7.

CLIF BAR energy bars have been named by trade magazines, nutritionists, and

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consumers alike as a top sports/energy/nutrition bar. Examples of the awards and recognitions

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received for the CLIF BAR energy bar include: Best Energy Bar Award by Harris Poll EquiTrend

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Study, Health, Consumer Search, Fitness, Mens Health, and Bicycling; Best Chewy Energy Bar

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Award by Fox News and Real Simple; The Best Supermarket Snacks by Mens Journal; Top 5

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Nutrition Bars by MSN.coms Health & Fitness Section; Favorite Energy Bar by Runners World;

Editors Choice Award by Mountain Biking and Climbing; Top 3 Trail Snacks by Backpacker;

and Top 3 Energy Bars by Competitor.

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Since as early as 1992 Clif Bar has used the mark CLIF BAR on energy bars and

related sports/energy/nutrition food and beverage products. For many years, Clif Bar has used the

word marks CLIF and CLIF BAR along with various graphical depictions of these marks (the Clif

Bar Marks), including those depicted below.

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For many years, Clif Bar has depicted its Clif Bar Marks in a red rectangular logo on its energy bars.
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Since the company was founded in 1992, Clif Bar has built one of the most popular

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and highly respected sports/nutrition/energy food and beverage brands. For example, in 2010,

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Landor Associates LLC, a strategic brand consulting firm, named CLIF BAR The No. 1 Breakaway

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Brand out of over 2,500 brands, including Facebook, in its study published in Forbes Magazine.

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10.

Clif Bar sells its high quality products through numerous retailers across the U.S.,

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including but not limited to grocery stores, drug stores, sporting goods stores, convenience stores,

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and gas stations. Examples of such retailers include Kroger, Publix, Whole Foods, Trader Joes,

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Safeway, Luckys, Lunardis, Costco, Sams Club, Wal-Mart, Target, REI, Walgreens, CVS, and

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Nordstrom. Clif Bar also sells its products online on its e-commerce website at

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www.clifbarstore.com as well as through numerous online retailers, including Amazon.

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11.

Clif Bar has spent very significant amounts promoting its CLIF BAR brand and its

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products. Within the past 10 years alone, Clif Bar has spent over $50 million on advertising its Clif

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Bar Marks.

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12.

Clif Bar has extensively advertised its products in various print advertisements, such

as Runners World, Running, Climbing Magazine, Velo News, and in radio and television
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advertisements. Clif Bar also advertises the Clif Bar Marks on the Internet in connection with its

website (www.clifbar.com), Facebook page (www.facebook.com/clifbar), Twitter feed

(https://twitter.com/clifbar), and Instagram account (http://instagram.com/clifbarcompany#), and it

makes extensive use of promotions, sweepstakes, and e-mail blasts to draw its target consumers to

these sites.

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Clif Bar sponsors numerous athletic events, athletic teams, and famous athletes across

the United States to increase the publics awareness of the Clif Bar Marks and Clif Bars products.

Examples of the numerous athletic events sponsored by Clif Bar include the Big Sur Marathon,

Escape from Alcatraz, Sea Otter Classic, San Diego Triathlon, UCLA Pac 10 Challenge, Twin Cities

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Marathon, Disneyland Half Marathon, Maine Coast Half Marathon, Telluride Ski Resort

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Event, Houston Marathon, Rock N Roll Marathon, Bike to Work Month, Yoga Journal Conference,

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Ski Sampling in Minnesota, LA Fit Expo, and Maverick Surf Contest. Participants and onlookers at

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these events regularly obtain free samples of CLIF BAR energy bars. Clif Bar also sponsors over

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1,500 famous professional and amateur athletes (known as Team Clif) that compete in various

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sports such as running, surfing, triathlons, bicycling, climbing, snowboarding, and skiing. Clif Bar

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also sponsors the well-known Garmin cycling team that races the Tour de France and other similar

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events.

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Since 2010, there have been more than $1 billion in sales of Clif Bars. Clif Bars

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branding strategy emphasizes its delicious and healthy food and the high quality of its products. Clif

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Bar uses only the highest-quality ingredients available, and avoids any ingredients sourced from

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genetically-modified organisms. Clif Bar exercises strict quality control over the production,

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distribution, manufacturing, and sale of its products.

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15.

Due to Clif Bars long and continuous use of its Clif Bar Marks in connection with its

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energy bars since at least as early as 1991, as well as the high quality of those bars, the Clif Bar

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Marks are widely recognized by the public as an indicator of the source of Clif Bars energy bars.

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As a result of Clif Bars extensive use and promotion of its energy bars, Clif Bar has

built and now owns enormously valuable goodwill symbolized by the Clif Bar Marks.
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17.

Clif Bar has developed common law rights in the Clif Bar Marks through its

extensive use thereof, and has secured numerous trademark registrations to protect the Clif Bar

Marks in the United States alone.

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Clif Bar owns numerous registrations for the Clif Bar Marks. The Clif Bar Marks

consist of the word mark CLIF BAR and various graphical depictions of the mark, including the

CLIF BAR Rectangle Logo, CLIF BAR & Mountain Logo, and the CLIF Rectangle Logo, used in

connection with energy bars. These registrations issued by the U.S. Patent and Trademark Office

include Registration Nos. 2,143,787; 2,573,420; 3,842,286; and 3,842,287. True and correct copies

of these registrations are annexed as Exhibit A.

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All of the foregoing registrations are valid, subsisting, and in full force and effect.

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Registrations Nos. 2,143,787 and 2,573,420 are incontestable pursuant to Section 15 of the Lanham

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Act, 15 U.S.C. 1065. These incontestable registrations serve as conclusive evidence of Clif Bars

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ownership of the marks and of its exclusive rights to use the marks in commerce on or in connection

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with all of the goods identified in the registrations, as provided by Section 33(b) of the Lanham Act,

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15 U.S.C. 1115(b).

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Defendants Infringing Energy Bars


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Notwithstanding Clif Bars exclusive use of the CLIF mark for healthy food bars for

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almost 25 years, Defendant Kill Cliff recently began offering a competing line of protein bars

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bearing the confusingly similar KILL CLIFF mark.

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On or about July 24, 2014, Kill Cliff announced the launch of its new KC BAR

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protein bar. Upon information and belief, the KC Bar was offered for sale on Kill Cliffs

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killcliff.com website and elsewhere in the following weeks, and has been sold and distributed

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nationwide. A representative image of the KC Bars is below. Prior to this launch, and upon

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information and belief, Kill Cliff had offered primarily sports drinks and nutritional supplements, but

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no food products of any kind.

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22.

The packaging for Kill Cliffs KC Bars prominently bears the KILL CLIFF mark, set

off in red text, on the front of the packaging. The KILL CLIFF mark incorporates Clif Bars CLIF
mark in its entirety, and the CLIFF portion of the KILL CLIFF mark is pronounced identically to
Clif Bars CLIF mark and differs only by the addition of another F. In light of these similarities, it
is apparent that Kill Cliff seeks to take a free ride on the enormous success of Clif Bars CLIF mark
in connection with healthy food bars, and to mislead consumers into believing that KC Bars are
somehow associated with Clif Bar and its extremely well-known Clif Bar Marks.
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The infringement in Kill Cliffs KC Bar packaging is significantly exacerbated by the

manner in which Kill Cliff advertises, markets, and distributes the KC Bar itself, which prominently
associates the product not with the KC BAR mark, but instead with the KILL CLIFF house mark.
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For example, Kill Cliff advertises offers the KC Bar on its webpage at killcliff.com.

As seen in the representative screenshots below, however, every reference to the KC Bar is made on
a page that features a prominent KILL CLIFF mark, and in some cases images of the conspicuously
branded KILL CLIFF sports drinks.

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Notably, the KC Bars packaging refers consumers directly to Kill Cliffs website at

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killcliff.com, where the bars are advertised as shown above. Consumers in the Internet age may well

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treat a products website as an extension of its physical packaging, further reinforcing the

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packagings branding (which here, of course, is infringing) and expanding upon the packagings

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nutritional and informational content. Even the U.S. Food and Drug Administration (FDA)

recognizes the association between a products packaging and its website andat least when a

products packaging directly refers consumer to a websitewill cite manufacturers for labeling

violations occurring in the packaging and on the website. See, e.g., FDAs March 17, 2015 letter to

Kind, LLC, available at

http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm440942.htm (identifying

labeling violations both on product packaging and on the website referenced in that packaging) (last

visited June 16, 2015).

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As with its website advertising, Kill Cliffs social-media and online marketing for the

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KC Bar also downplays (or ignores entirely) the KC BAR mark, and instead advertises the bars

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like its sports drinksonly under a prominent and infringing KILL CLIFF mark. Shown below are

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representative screenshots of Kill Cliffs online advertising for the KC Bars, including through

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Facebook.

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27.

Also exacerbating this infringement is the manner in which Kill Cliff advertises and

distributes samples of the KC Bar at numerous races and other events around the country where

sports enthusiasts gather (including events where Clif Bar is also a sponsor or corporate attendee).

At these events, Kill Cliff distributes free KC Bars to attendees out of tents, kiosks, or otherwise in

areas emblazoned with signage bearing only the KILL CLIFF mark. A consumer being given a free

healthy bar in front of such signage may naturally be confused into thinking she has actually

received a bar from Clif Bar, the owner of the enormously popular CLIF mark, when of course this

is not the case.

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It appears that Kill Cliffundoubtedly aware that conspicuous use of the KILL

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CLIFF mark on its bars would cause inevitable confusion with the well-known CLIF mark and leave

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it liable for trademark infringementbelieves it can somehow circumvent this liability by using the

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KC acronym instead of KILL CLIFF as the name of its bar. This circumvention fails because the

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bars packaging still prominently carries the KILL CLIFF brand and Kill Cliff is otherwise

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marketing its bars through multiple channels in blatant association with the infringing KILL CLIFF

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mark.

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In light of its packaging and marketing strategy, Kill Cliffs infringing KC Bars are

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likely to deceive, confuse, and mislead purchasers and prospective purchasers into believing that

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these unlicensed and unauthorized products are either offered or authorized by Clif Bar, when in fact

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they are not. Consumers perceiving a defect, lack of quality, or any other irregularity in Kill Cliffs

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infringing KC Bars may well ascribe these deficiencies to Clif Bar, tarnishing its reputation

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irreparably.

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Kill Cliffs conduct is intentionally fraudulent, malicious, willful and wanton.

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FIRST CLAIM FOR RELIEF

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For Federal Trademark Infringement

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(15 U.S.C. 1114-1117; Lanham Act 32)

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31.

Clif Bar repeats and re-alleges each and every allegations contained in the preceding

paragraphs in this Complaint, and incorporates them herein by reference.


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32.

Clif Bar owns the Clif Bar Marks. The CLIF BAR marks include, inter alia, U.S.

trademark registrations for the marks CLIF and CLIF BAR (alone or with associated design

elements) used in connection with ready-to-eat food bars.

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Kill Cliffs distribution, marketing, promotion, offering for sale, and sale of food bars

in the infringing KC Bar packaging and/or in prominent connection with the KILL CLIFF house

mark is likely to cause confusion, mistake, or deception as to the source, affiliation, or sponsorship

of Kill Cliffs bars. As a result of Kill Cliffs unauthorized use of a mark in connection with food

bars that is confusingly similar to Clif Bars federally registered Clif Bar Marks, the public is likely

to believe that Kill Cliffs goods have been manufactured by, approved by, or are otherwise

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affiliated with Clif Bar, when in fact they are not.


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Kill Cliffs unauthorized use of a mark that is confusingly similar to the Clif Bar

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Marks falsely represents Kill Cliffs food bars as emanting from or being authorized by Clif Bar and

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places beyond Clif Bars control the quality of the products bearing or being offered under the Clif

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Bar Marks.

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35.

Kill Cliffs infringement of Clif Bars registered marks is willful, intended to reap the

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benefit of the goodwill of Clif Bar, and violates Section 32(1) of the Lanham Act, 15 U.S.C.

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1114(1).

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36.

As a direct and proximate result of Kill Cliffs infringing activities, Clif Bar has

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suffered irreparable harm. Kill Cliffs conduct will continue both to harm Clif Bar and deceive the

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public unless enjoined by this Court. Clif Bar has no adequate remedy at law.

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SECOND CLAIM FOR RELIEF

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For Federal Unfair Competition (False Designation of Origin and False Description)

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(15 U.S.C. 1125(a); Lanham Act 43(a))

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37.

Clif Bar repeats and re-alleges each and every allegations contained in the preceding

paragraphs in this Complaint, and incorporates them herein by reference.


38.

Kill Cliffs distribution, marketing, promotion, offering for sale, and sale of food bars

in the infringing KC Bar packaging and/or otherwise in prominent connection with the KILL CLIFF
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house mark tends falsely to describe Kill Cliffs food bars and is likely to cause confusion, mistake

or deception as to the source, affiliation, or sponsorship of Kill Cliffs food bars, by and to the

detriment of Clif Bar.

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39.

Kill Cliffs conduct is willful, intended to reap the benefit of Clif Bars goodwill, and

violates Section 43(a)(10(A) of the Lanham Act, 15 U.S.C. 1125(a)(1)(A).


40.

As a direct and proximate result of Kill Cliffs infringing activities, Clif Bar has

suffered irreparable harm. Kill Cliffs conduct will continue both to harm Clif Bar and deceive the

public unless enjoined by this Court. Clif Bar has no adequate remedy at law.

THIRD CLAIM FOR RELIEF

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For California Unfair Competition

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(Cal. Bus. & Prof. Code 17200)

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41.

Clif Bar repeats and re-alleges each and every allegations contained in the preceding

paragraphs in this Complaint, and incorporates them herein by reference.


42.

Kill Cliffs infringement of Clif Bars Clif Bar Marks constitutes unlawful, unfair or

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fraudulent business act[s] or practice[s] and unfair, deceptive, untrue or misleading advertising

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within the meaning of California Business & Professions Code Section 17200.

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43.

As a direct and proximate result of Kill Cliffs conduct, Clif Bar has suffered

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irreparable harm. Kill Cliffs conduct will continue both to harm Clif Bar and deceive the public

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unless enjoined by this Court. Clif Bar has no adequate remedy at law.

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44.

As a consequence of Kill Cliffs actions, Clif Bar is entitled to injunctive relief and an

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order that, among other things, Kill Cliff permanently cease the manufacture, use, display or sale of

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food bars in connection with the KILL CLIFF mark.

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PRAYER FOR JUDGMENT

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WHEREFORE, Clif Bar respectfully demands judgment as follows:

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1.

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That an injunction be issued enjoining Kill Cliff, and any employees, agents, servants,

officers, representatives, directors, attorneys, successors, affiliates, assigns, and entities owned or

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controlled by Kill Cliff, and all those in active concert or participation with Kill Cliff, and each of

them who receives notice directly or otherwise of such injunction from:

a) producing, sourcing, importing, selling, offering for sale, distributing, advertising

or promoting any food bars using, displaying, or offered in connection with any designations,

designs, words or symbols that so resemble any of the Clif Bar Marks as to be likely to cause

confusion, mistake or deception;

b) using any word, term, name, symbol, device or combination of them that causes

or is likely to cause confusion, mistake or deception as to the affiliation or association of Kill Cliff or

its food bars with Clif Bar or as to the origin of Kill Cliffs goods, or any false designation of origin,

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false or misleading description or representation of fact;

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c) using any false designation of origin or false description, or performing any act

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which is likely to lead members of the trade or public to believe that any food bar manufactured,

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imported, distributed, offered for sale, or sold by Kill Cliff, or any service offered or rendered by

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Kill Cliff, is in any manner associated or connected with Clif Bar, or is licensed, sponsored,

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approved or authorized by Clif Bar;

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d) engaging in any other activity constituting unfair competition with Clif Bar, or
constituting infringement of the Clif Bar Marks;

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e) disposing of, destroying, altering, moving, removing, concealing, tampering with,

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or in any manner secreting any business records (including computer records) of any kind, including

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invoices, correspondence, books of account, receipts or other documentation relating or referring in

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any manner to any food bars offered in connection with the mark KILL CLIFF, or any other mark or

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designation that is confusingly similar to any of the Clif Bar Marks; and

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f) instructing, assisting, aiding or abetting any other person or entity in engaging in


or performing any of the activities referred to in subparagraphs (a) through (e) above.
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Directing that Kill Cliff recall from all distributors, retailers, or other recipients any

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and all infringing or dilutive products and packaging sold or distributed by Kill Cliff and, upon

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recall, to deliver such goods up to Clif Bars counsel for destruction at Kill Cliffs cost.

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3.

Directing that Kill Cliff cancel any advertising for food bars, regardless of medium,

using the mark KILL CLIFF, or any other mark or designation that is confusingly similar to any of

the Clif Bar Marks.

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Directing that Kill Cliff deliver to Clif Bars counsel for destruction at Kill Cliffs

costs all signs, products, packaging, promotional material, advertising material, catalogs, and any

other items that bear the mark KILL CLIFF, or any other mark or designation that is confusingly

similar to any of the Clif Bar Marks, in connection with food bars.

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5.

Directing such other action as the Court may deem appropriate to prevent the trade

and public from deriving the erroneous impression that any food bars offered, advertised, or

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promoted by or on behalf of Kill Cliff are authorized by Clif Bar or related in any way to Clif Bars

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products or services.

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6.

Directing that Kill Cliff file with the Court and serve upon Clif Bars counsel within

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thirty (30) days after entry of judgment a report in writing under oath setting forth in detail the

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manner and form in which Kill Cliff has complied with the above.

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7.

Awarding Clif Bar such other and further relief as the Court may deem just and

proper.

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DATED: July 13, 2015

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Respectfully submitted,
KILPATRICK TOWNSEND & STOCKTON LLP

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By: /s/ Larry W. McFarland______________________
LARRY W. McFARLAND (Bar # 129668)
ANTHONY MALUTTA (Bar # 193587)
Two Embarcadero Center, 8th Floor
San Francisco, California 94111
Telephone: (415) 576-0200
Facsimile: (415) 576-0300
Email: lmcfarland@kilpatricktownsend.com
amalutta@kilpatricktownsend.com

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Attorneys for Plaintiff CLIF BAR & COMPANY

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KILPATRICK TOWNSEND 67338813 10

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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