Clif Bar v. Kill Cliff - amended trademark complaint.pdf

7/24/2019 Clif Bar v. Kill Cliff - amended trademark complaint.pdf

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Case No. 3:15-cv-03258-JD

FIRST AMENDED COMPLAINT

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KILPATRICK TOWNSEND & STOCKTON LLPLARRY W. McFARLAND (Bar # 129668)ANTHONY J. MALUTTA (Bar # 193587)Two Embarcadero Center, 8th FloorSan Francisco, California 94111

Telephone: (415) 576-0200Facsimile: (415) 576-0300Email: [email protected], [email protected]

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CLIF BAR & COMPANY, a CaliforniaCorporation,

Plaintiff,v.

KILL CLIFF INC., a Delaware corporation,

Defendant.

Case No. 3:15-cv-03258-JD

FIRST AMENDED COMPLAINTFOR TRADEMARK

INFRINGEMENT, TRADEMARK

DILUTION, AND UNFAIR

COMPETITION (INJUNCTIVE

RELIEF SOUGHT)

Plaintiff Clif Bar & Company (Clif Bar or Plaintiff) complains against Defendant Kill

Cliff Inc. (Kill Cliff or Defendant) as follows:

JURISDICTION, VENUE AND INTRA-DISTRICT ASSIGNMENT

1. Plaintiffs first, second, and third claims arise under the Trademark Act of 1946 (the

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

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

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

under 28 U.S.C. 1367.

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.

Case 3:15-cv-03258-JD Document 26 Filed 11/16/15 Page 1 of 24


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Case No. 3:15-cv-03258-JDFIRST AMENDED COMPLAINT

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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.

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

famous CLIF BAR energy and nutrition bar and other enormously popular food products for

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

CLIF BAR and CLIF for energy and nutrition bars.

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

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

sale and sells sports recovery drinks and energy and nutrition bars nationwide, including in this

judicial district. Kill Cliff has authorized, directed, and/or actively participated in the wrongful

conduct alleged herein.

FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS

Clif Bars CLIF BAR Energy and Nutrition Bars

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

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

ORGANIC TRAIL MIX bars, CLIF BUILDERS bars, CLIF CRUNCH granola bars, and CLIF

KID food bars. Among the many products offered by Clif Bar, its CLIF BAR energy and nutrition

bars are the companys flagship and best-selling products and have been for decades.

7. CLIF BAR energy and nutrition bars have been named by trade magazines,

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

recognition received for Clif Bars CLIF BAR energy and nutrition bars include: Best Energy Bar

Award by Harris Poll EquiTrend Study, Health, Consumer Search, Fitness, Mens Health, and

Bicycling; Best Chewy Energy Bar Award by Fox News and Real Simple; The Best

Supermarket Snacks byMens Journal; Top 5 Nutrition Bars byMSN.coms Health & Fitness



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Section; Favorite Energy Bar byRunners World; Editors Choice Award byMountain Biking

and Climbing; Top 3 Trail Snacks byBackpacker; and Top 3 Energy Bars by Competitor.

8. Since at least as early as 1992, Clif Bar has used the mark CLIF BAR on or in

connection with energy and nutrition bars and related sports/energy/nutrition food and beverage

products. For many years, Clif Bar has used the marks CLIF and CLIF BAR, either standing alone

or in combination with other words and/or design elements (collectively, the Clif Bar Marks),

including but not limited to those depicted below:

For many years, the Clif Bar Marks have appeared, and continue to appear, on Clif Bars energy

and nutrition bars in a red rectangular logo.

9. Since the company was founded in 1992, Clif Bar has built one of the most popular

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

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

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

Magazine.

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

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

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

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

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

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

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

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

connection with its Clif Bar Marks and the products sold under those 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

advertisements. Clif Bar also advertises the products sold under its 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.

13. 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 various athletic events sponsored by Clif Bar include, but are not

limited to, theBig Sur Marathon,Escape from Alcatraz, Sea Otter Classic, San Diego Triathlon,

UCLA Pac 10 Challenge, Twin Cities Marathon, Disneyland Half Marathon, Maine Coast Half

Marathon, Telluride Ski Resort Event,Houston Marathon, Rock N Roll Marathon, Bike to Work

Month, Yoga Journal Conference, Ski Sampling in Minnesota, LA Fit Expo, and Maverick Surf

Contest. Clif Bar regularly provides free samples of CLIF BAR energy and nutrition bars to

participants and onlookers at these events. Clif Bar also sponsors over 1,500 famous professional

and amateur athletes (known as Team Clif), who compete in various sports such as running,

surfing, triathlons, bicycling, climbing, snowboarding, and skiing. Clif Bar also sponsors the well-

known Garmin cycling team that races the Tour de France and other similar events.

14. Since 2010 alone, sales of CLIF BAR energy and nutrition bars have exceeded $1

billion. Clif Bars branding strategy emphasizes its delicious and healthy food products and the

high quality of those products. Clif Bar uses only the highest-quality ingredients available, and

avoids any ingredients sourced from genetically-modified organisms. Clif Bar exercises strict

quality control over the production, distribution, manufacturing, and sale of its products.

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

its energy and nutrition bars since at least as early as 1992, as well as the high quality of those



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bars, the Clif Bar Marks are widely recognized by the general consuming public of the United

States as an indicator of the source of Clif Bars energy and nutrition bars.

16. As a result of Clif Bars extensive use and promotion of its energy and nutrition

bars in connection with its Clif Bar Marks, Clif Bar has built and now owns enormously valuable

goodwill symbolized by the Clif Bar Marks.

17. Clif Bar has developed very strong common law rights in the Clif Bar Marks

through its extensive use thereof, and additionally has secured numerous federal trademark

registrations to protect the Clif Bar Marks in the United States, as well as in other jurisdictions.

18. Clif Bar owns numerous federal registrations of the Clif Bar Marks in the United

States. Representative registrations issued by the U.S. Patent and Trademark Office include, but

are not limited to, Registration Nos. 2,143,787; 2,573,420; 3,842,286; and 3,842,287. True and

correct copies of these registrations are attached as Exhibit A.

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

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

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

Clif Bars ownership of the underlying marks and of its exclusive rights to use these marks in

commerce on or in connection with all of the goods identified in the registrations, as provided by

Section 33(b) of the Lanham Act, 15 U.S.C. 1115(b).

20. Because of the high degree of inherent and acquired distinctiveness of the Clif Bar

Marks, the length of time and extent to which Clif Bar has used the Clif Bar Marks, the vast

advertising and publicity of which the Clif Bar Marks have been the subject, the substantial trading

area in which the Clif Bar Marks have been and continue to be used, and the high degree of

consumer recognition of the Clif Bar Marks, the Clif Bark Marks were famous and well-known

trademarks widely recognized by the general consuming public of the United States as a

designation of source of Clif Bars goods and deserving of a broad scope of legal protection prior

to any actual or constructive priority date Kill Cliff may claim.



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Defendant Kill Cliffs Infringing Energy and Nutrition Bars

21. Notwithstanding Clif Bars exclusive use of the Clif Bar Marks for energy and

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

energy and nutrition bars bearing the confusingly similar and diluting KILL CLIFF mark.

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

energy and nutrition bar (the KC Bar). Upon information and belief, the KC Bar was first

offered for sale on Kill Cliffs www.killcliff.com website and elsewhere in the following weeks,

and has been sold and distributed nationwide. A representative image of the KC Bar is below.

Prior to this launch, and upon information and belief, Kill Cliff had offered primarily sports drinks

and nutritional supplements, but had not sold or offered for sale food products of any kind.

23. The packaging for Kill Cliffs KC Bar 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, differing only in 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 and other Clif Bar Marks in connection with energy and nutrition bars, and to mislead



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consumers into believing that its KC Bar is somehow affiliated or associated with Clif Bar and its

famous Clif Bar Marks.

24. 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.

25. For example, Kill Cliff advertises the KC Bar on its website at www.killcliff.com.

As seen in the representative screenshots below, however, every reference to the KC Bar is made

on a page that prominently features the KILL CLIFF mark, and in some cases images of the

conspicuously-branded KILL CLIFF sports drinks:



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

www.killcliff.com, where the KC Bars are advertised as shown above. Consumers in the Internet

age may well treat a products website as an extension of its physical packaging, further

reinforcing the packagings branding (which here, of course, is infringing and diluting the Clif Bar

Marks) and expanding upon the packagings 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 consumers to a website

will 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 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 Nov. 11, 2015).

27. As with its website advertising, Kill Cliffs social media and online marketing for

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

energy and nutrition barslike its sports drinksonly under a prominent and infringing KILL



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CLIFF mark. Shown below are representative screenshots of Kill Cliffs online advertising for its

KC Bars, including on Facebook:

28. Also exacerbating this infringement and dilution 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 for which Clif Bar is also a sponsor or

corporate attendee). At these events, Kill Cliff distributes free KC Bars to attendees from tents,

kiosks, or otherwise in areas emblazoned with signage bearing only the KILL CLIFF mark. A

consumer given a free energy and nutrition 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 BAR energy and nutrition bars and associated Clif Bar Marks, when of course this is not the

case.



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

CLIFF mark on its energy and nutrition bars would cause inevitable confusion and association

with the famous Clif Bar Marks and make it liable for trademark infringement and dilution

believes it can somehow circumvent this liability by using the KC acronym instead of KILL

CLIFF as the name of its energy and nutrition bar. This circumvention fails because the KC Bar

packaging still prominently features the KILL CLIFF mark and Kill Cliff is otherwise marketing

its KC Bars through multiple channels in blatant association with the infringing and dilutive KILL

CLIFF mark.

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

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

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

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

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

irreparably.

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

FIRST CLAIM FOR RELIEF

For Federal Trademark Infringement

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

32. Clif Bar repeats and re-alleges each and every allegation contained in the preceding

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

33. Clif Bar owns the Clif Bar Marks and numerous U.S. federal registrations of the

Clif Bar Marks for use in connection with energy and nutrition bars, as discussed above.

34. Kill Cliffs distribution, marketing, promotion, offering for sale, and sale of energy

and nutrition 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 energy and nutrition bars that is confusingly similar to Clif Bars federally



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registered Clif Bar Marks, the public is likely to believe that Kill Cliffs goods have been

manufactured by, approved by, or are otherwise affiliated with Clif Bar, when in fact they are not.

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

Marks falsely represents Kill Cliffs energy and nutrition bars as emanting from or being

authorized by Clif Bar and places beyond Clif Bars control the quality of the products bearing or

being offered under the Clif Bar Marks.

36. Kill Cliffs infringement of Clif Bars registered Clif Bar Marks is willful, intended

to reap the benefit of the goodwill of Clif Bar, and violates Section 32(1) of the Lanham Act, 15

U.S.C. 1114(1).

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

suffered irreparable harm and damage to its reputation and goodwill. 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.

SECOND CLAIM FOR RELIEF

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

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




and nutrition bars in the infringing KC Bar packaging and/or otherwise in prominent connection

with the KILL CLIFF house mark tends falsely to describe Kill Cliffs energy and nutrition bars

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

Kill Cliffs energy and nutrition bars, by and to the detriment of Clif Bar.

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

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





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THIRD CLAIM FOR RELIEF

For Federal Trademark Dilution

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



43. For more than two decades, Clif Bar has exclusively and continuously promoted

and used its registered Clif Bar Marks throughout the United States.

44. The Clif Bar Marks are famous trademarks under Section 43(c)(2)(A) of the

Lanham Act, 15 U.S.C. 1125(c)(2)(A), in that they are widely recognized by the general

consuming public of the United States as a designation of the source of Clif Bars goods.

45. The Clif Bar Marks became famous and well-known symbols of Clif Bar and its

products before Kill Cliff commenced its unlawful use of the KILL CLIFF mark and related

activities in connection with energy and nutrition bars.

46. Kill Cliffs use of the KILL CLIFF mark and related activities in connection with

energy and nutrition bars are likely to dilute, do dilute, and will continue to dilute the

distinctiveness of the famous Clif Bar Marks, in violation of Section 43(c) of the Lanham Act, 15

U.S.C. 1125(c), by eroding the publics exclusive identification of the famous Clif Bar Marks

with Clif Bar, and otherwise lessening the capacity of the Clif Bar Marks to identify and

distinguish Clif Bars goods.

47. Kill Cliffs unauthorized use of the KILL CLIFF mark and related activities in

connection with energy and nutrition bars is intended to, and has the effect of, trading on Clif Bars

reputation and goodwill and causing dilution of the famous Clif Bar Marks.

48. Upon information and belief, Kill Cliff does not own any federal or state

registrations or trademark applications for any mark that includes, in whole or in part, any of the

Clif Bar Marks for use in connection with energy and nutrition bars, and cannot assert any rights in



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the Clif Bar Marks that predate Clif Bars first use, actual or constructive, of the Clif Bar Marks in

connection with energy and nutrition bars.

49. Kill Cliffs actions demonstrate an intentional, willful, and malicious intent to trade

on the goodwill associated with the Clif Bar Marks or to cause dilution of the marks, to the great

and irreparable injury of Clif Bar.

50. As a direct and proximate result of Kill Cliffs unlawful activities, Clif Bar has




FOURTH CLAIM FOR RELIEF

For California State Trademark Dilution

(CAL. BUS. & PROF. CODE 14247)



52. For more than two decades, Clif Bar has exclusively and continuously promoted

and used its registered Clif Bar Marks throughout the United States, including throughout the State

of California.

53. The Clif Bar Marks are famous trademarks under CAL. BUS. & PROF. CODE

14247, in that they are widely recognized by the general consuming public of the State of

California, or by a geographic area of the State of California, as a designation of the source of Clif

Bars goods.

54. The Clif Bar Marks became famous and well-known symbols of Clif Bar and its

products throughout the State of California or within a geographic area of the State of California

before Kill Cliff commenced its unlawful use of the KILL CLIFF mark and related activities in

connection with energy and nutrition bars.

55. Kill Cliffs use of the KILL CLIFF mark and related activities in connection with

energy and nutrition bars are likely to dilute, do dilute, and will continue to dilute the



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distinctiveness of the famous Clif Bar Marks, in violation of CAL.BUS.&PROF.CODE 14247, by

eroding the publics exclusive identification of the famous Clif Bar Marks with Clif Bar, and

otherwise lessening the capacity of the Clif Bar Marks to identify and distinguish Clif Bars goods.

56. Kill Cliffs unauthorized use of the KILL CLIFF mark and related activities in

connection with energy and nutrition bars are intended to, and have the effect of, trading on Clif

Bars reputation and goodwill and causing dilution of the famous Clif Bar Marks.

57. Kill Cliffs actions demonstrate an intentional, willful, and malicious intent to trade

on the goodwill associated with the Clif Bar marks or to cause dilution of the marks, to the great

and irreparable injury of Clif Bar.

58. As a direct and proximate result of Kill Cliffs unlawful activities, Clif Bar has




FIFTH CLAIM FOR RELIEF

For California Unfair Competition

(CAL. BUS. & PROF. CODE 17200)



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

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

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

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

irreparable harm and damage to its reputation and goodwill. 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.

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

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



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sale of energy and nutrition bars and any other similar products in connection with the KILL

CLIFF mark.

SIXTH CLAIM FOR RELIEF

For Common Law Unfair Competition




and nutrition bars in the infringing KC Bar packaging and/or otherwise in prominent connection

with the KILL CLIFF house mark tends falsely to describe Kill Cliffs energy and nutrition bars

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

Kill Cliffs energy and nutrition bars, by and to the detriment of Clif Bar.

65. Kill Cliffs conduct falsely represents that its goods emanate from or are otherwise

authorized by or affiliated with Clif Bar, and places beyond Clif Bars control the quality of such

goods.

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

and constitutes common law unfair competition.





PRAYER FOR JUDGMENT

WHEREFORE, Clif Bar respectfully demands judgment as follows:

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

servants, officers, representatives, directors, attorneys, successors, affiliates, assigns, and entities

owned or 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:



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

advertising or promoting any energy, nutrition, and other 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 energy, nutrition, or other food bars with Clif Bar or as to the origin of Kill Cliffs goods, or

any false designation of origin, false or misleading description or representation of fact;

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

which is likely to lead members of the trade or public to believe that any energy, nutrition, or other

food bar manufactured, imported, distributed, offered for sale, or sold by Kill Cliff, or any service

offered or rendered by Kill Cliff, is in any manner associated or connected with Clif Bar, or is

licensed, sponsored, approved or authorized by Clif Bar;

d) using any word, term, name, symbol, device or combination of them in

connection with Kill Cliffs energy, nutrition, or other food bars that dilutes or is likely to dilute

the distinctiveness of Clif Bars Clif Bar Marks;

e) engaging in any other activity constituting unfair competition with Clif Bar, or

constituting infringement or dilution of the Clif Bar Marks;

f) disposing of, destroying, altering, moving, removing, concealing, tampering

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

including invoices, correspondence, books of account, receipts or other documentation relating or

referring in any manner to any energy, nutrition, or other food bars offered in connection with the

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

any of the Clif Bar Marks; and

g) 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 (f) above.



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2. Directing that Kill Cliff recall from all distributors, retailers, or other recipients any

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

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

3. Directing that Kill Cliff cancel any advertising for energy, nutrition, and other food

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

or dilutive of, any of the Clif Bar Marks, regardless of medium.

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

cost 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, or dilutive of, any of the Clif Bar Marks, in connection with energy, nutrition, and other

food bars.

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

and public from deriving the erroneous impression that any energy, nutrition, or other food bars

offered, advertised, or promoted by or on behalf of Kill Cliff are authorized by Clif Bar or related

in any way to Clif Bars products or services.

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

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

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

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

proper.

[Signature on following page]



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This 16th day of November, 2015.

Respectfully submitted,

KILPATRICK TOWNSEND & STOCKTON LLP

By: /s/ Larry W. McFarland_________________

LARRY W. McFARLAND (Bar # 129668)ANTHONY MALUTTA (Bar # 193587)Two Embarcadero Center, 8th FloorSan Francisco, California 94111Telephone: (415) 576-0200Facsimile: (415) 576-0300Email: [email protected]

[email protected]



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CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing document was filed

electronically using the CM/ECF system on November 16, 2015, which will automatically notify

and effect service on all counsel of record for Defendant, who are deemed to have consented to

electronic service via the Courts CM/ECF system:

/s/ Larry W. McFarlandLarry W. McFarlandAttorney for Plaintiff



20/24EXHIBIT A PAGE 20



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Clif Bar v. Kill Cliff - amended trademark complaint.pdf

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