kefir confusion: court finds definition of little-known product to be up for grabs

Lifeway
Foods, Inc.
v. Millenium Products, Inc., No. CV 16-7099-R, 2016 WL 7336722, — F. Supp. 3d – (C.D. Cal.
Nov. 17, 2016)
Before
the case was dismissed on statute of limitations/laches grounds, the court
denied a preliminary injunction. Lifeway makes kefir products, while defendants
make
a
non-dairy beverage that
they
called kefir made with coconut water.
Typically,
kefir is a dairy-based beverage.
”  Lifeway argued that kefir was,
by definition, dairy-based and thus defendants’ CocoKefir was falsely
advertised.  Lifeway sent the relevant
defendant a C&D in 2010, and again in 2012.
 In 2011, the FDA also sent the defendant a warning letter
stating that it believed the CocoKefir name may mislead customers because it
could imply that the product was a dairy-based beverage.
But, after CocoKefir’s
response, the FDA

in 2013

issued a close out letter stating that CocoKefir had addressed its concerns.
The
court declined to grant a preliminary injunction.  Although Lifeway cited “
a wide range of dictionary
definitions and websites supporting its argumen
t that kefir must contain dairy,”
the court found these sources “minimally convincing,” given that kefir only
recently rose to popularity.
Because
the market for kefir
was
relatively small and not yet fully developed
, “these websites’ and
dictionary’s definitions do not provide a convincing definition of kefir, but
rather, a surface-level understanding of a relatively new product.
No regulatory body, including the FDA, had agreed;
the FDA decided not to take regulatory action. 
Lifeway

argued that kefir has a more
historical and specific definition as a dairy-based drink than
soy milk,” but also argued that it had spent “millions” of
dollars branding its kefir as a dairy-based drink.
If the meaning of kefir was so clear and ‘enshrined,’ it would seem unnecessary
to spend millions of dollars specifically branding kefir as a dairy-based
beverage.
Even if
kefir was by definition dairy-based, making CocoKefir misleading, Lifeway didn’t
show that a substantial number of consumers were likely to be misled.  A survey created by counsel wasn’t
convincing, and neither were social media comments.
Nor
could Lifeway show irreparable harm. 
Lifeway argued that, because the market for kefir was
relatively new and small,
CocoKefir
would
cut into

Lifeway’s
sales. The court was unconvinced: CocoKefir is advertised as
a vegan beverage, while Lifeway Kefir is a dairy product.
This type of speculative
evidence offered by Plaintiff regarding a possible loss of market share is
insufficient to establish irreparable injury under
Herb Reed.

The
balance of equities didn’t favor Lifeways: forcing defendants to pull the
product would be a serious harm, while Lifeway has survived seven years of
competition with CocoKefir.

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