Kroger, Lidl drop own brand trademark infringement suit

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Kroger, Lidl drop own brand trademark infringement suit

By Michael Johnsen - 09/13/2017

RICHMOND, Va.— The U.S. District Court here on Tuesday officially dismissed the Kroger lawsuit against Lidl, which alleged Lidl infringed on Kroger's private label trademark. Both parties filed a stipulation of dismissal on Sept. 7, the court reported.

According to that stipulation, the parties agreed to dismiss the suit with prejudice, meaning it cannot be refiled anytime in the future, with each side bearing their own attorney fees and court costs.

Kroger initially filed the claim in July.

The decision to drop the case was preceeded by a decision issued by U.S. District Judge John Gibney, Jr. in July, which ruled against placing an inunction on Lidl, reporting that Kroger had not clearly shown it is likely to succeed on the merits of its claims.

According to court documents, Kroger's private label sales totaled $2 billion in 2016, with a penetration of 25 million households. A survey by Prof. Isabella Cunningham, a partner at EM Research Group, found that 54% of Kroger's frequent shoppers recognized the "Private Selection" as coming from a single source, with 58% of those shoppers identifying Kroger as that source.

"Kroger's own survey shows that less than a third of its regular customers associate Private Selection with Kroger," Gibney stated.

"Kroger has shown only the possiblity of consumer confusion and thus only the possibility of irreparable harm," Gibney continued. "While Kroger has not shown a likelihood of harm, Lidl has only one chance to launch its stores in a new country and would likely suffer if it had to do so without its line of [own brand] premium producdts," he concluded. "The public interest lies in robust competition, and the risk posed to Kroger by Lidl's Preferred Selection mark does not outweigh that interest."