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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

MEMORANDUM

TO: Alan Ngo, Responsible Partner, intellectual Property

FROM: Christy Bauer, Lead Associate, intellectual Property; Peter Vassiliev, Working Associate, intellectual Property

DATE: January 11, 2023

RE: Analysis of Court's Preliminary Injunction Order — Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., Case No. 1:22-cv-09483 (S.D.N.Y.)

MATTER NO.: 1011-00003

BILLING CODE: 11470-001

PRIVILEGE DESIGNATION: This memorandum is protected by attorney-client privilege and the attorney work-product doctrine. It is prepared in connection with the provision of legal advice and in anticipation of continued litigation. Do not distribute outside the engagement team without prior authorization.

I. Executive Summary

On January 9, 2023, the Honorable Patricia M. Albright of the United States District Court for the Southern District of New York issued an Order on Meridian Consumer Brands LLC's ("MCB") Motion for Preliminary Injunction (filed November 18, 2022) in Case No. 1:22-cv-09483 (the "PI Order"). This memorandum provides a detailed analysis of the PI Order, its implications for the litigation and trial strategy, an assessment of potential interlocutory appeal, and recommendations regarding settlement leverage and immediate next steps.

The Court granted the motion in part, ordering Brindoval Home Goods Inc. ("Brindoval") to modify its packaging trade dress within forty-five (45) days of the Order — specifically, to (a) remove the stylized wave device from all MERIDIAN FRESH packaging and marketing materials, and (b) discontinue the teal-and-white color scheme on MERIDIAN FRESH packaging that the Court found mimics MCB's registered trade dress. The compliance deadline falls on approximately February 23, 2023.

The Court denied the motion in part, declining to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial. In reaching this conclusion, the Court found that MCB had not demonstrated a sufficient likelihood of irreparable harm arising from the word mark alone — as distinguished from the trade-dress elements — to justify the extraordinary remedy of a pretrial injunction of the mark itself. The Court expressly noted, however, that its ruling was without prejudice to MCB's ability to seek additional injunctive relief at trial or upon a further showing of confusion arising from the word mark after the trade-dress modifications have been implemented.

Our net assessment is as follows: The partial grant represents a meaningful and strategically significant victory for MCB. It eliminates the most visually egregious source of trade-dress confusion in the marketplace — the near-replica packaging featuring MCB's registered wave device and signature teal-and-white color scheme — and provides a strong judicial endorsement of the core infringement theory. At the same time, the denial of injunctive relief as to the word mark leaves Brindoval free to continue selling products under the "MERIDIAN FRESH" name, which remains the central word-mark infringement claim in this action. This outcome creates both meaningful litigation leverage and certain strategic risks that require careful planning as the case proceeds through discovery toward trial. The sections that follow address each of these considerations in detail.

II. Background

A. MCB's Trademark Portfolio

Meridian Consumer Brands LLC is a Delaware limited liability company with its principal offices in Stamford, Connecticut. MCB manufactures and distributes a broad line of household cleaning, personal care, and home fragrance products through national retailers, grocery chains, and direct-to-consumer e-commerce channels. Its flagship brand, MERIDIAN, has been in continuous use in commerce since approximately 2011 and is supported by a robust portfolio of federal trademark registrations.

The registrations most directly relevant to this litigation are as follows:

• U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark), International Class 3, covering household cleaning products. Registered August 14, 2012. MCB has maintained continuous use in commerce since at least 2011. The registration is incontestable under Section 15 of the Lanham Act (15 U.S.C. § 1065), having been in continuous use for more than five consecutive years following registration with no pending challenge.

• U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark), International Class 3, covering all-purpose cleaners, glass cleaners, disinfecting sprays, and related products. Registered October 18, 2016. This registration extends MCB's trademark protection to the MERIDIAN family of marks in the cleaning-products category.

• U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo incorporating a wave device), International Class 3, covering the same product categories. Registered July 10, 2018. This design mark is particularly relevant to the trade-dress component of the litigation, as the Court found Brindoval's packaging to be a "near-replica" of this registered stylized logo.

MCB's MERIDIAN-branded cleaning product line has achieved substantial commercial success since its launch. In fiscal year 2022, the MERIDIAN cleaning line generated approximately $94.5 million in revenue, representing approximately 24.4% of MCB's total consolidated revenue of approximately $387 million. The MERIDIAN brand is the single largest revenue contributor within MCB's product portfolio, and its market position is central to the company's long-term growth strategy. MCB distributes MERIDIAN cleaning products through approximately 14,000 retail points of sale nationwide, including major national retailers such as Target, Walmart, Bramwell Partners LLC, and Harborview Enterprises, as well as through its own direct-to-consumer website.

MCB's cumulative advertising and promotional expenditure on the MERIDIAN cleaning line from 2011 through 2022 totals approximately $47.2 million, representing an average annual spend of approximately $3.93 million. This investment has included national television advertising, digital and social media campaigns, point-of-sale displays, trade-show participation, and influencer marketing programs. The significance of these expenditures is reflected in the Court's finding that the MERIDIAN mark has acquired strong commercial distinctiveness and secondary meaning in the household cleaning products market.

B. Brindoval's Infringing Activity

Brindoval Home Goods Inc. is a Minnesota corporation headquartered in Bloomington, Minnesota, operating 148 retail home-goods stores across twelve Midwestern and Mountain West states, including Minnesota, Wisconsin, Iowa, Illinois, Michigan, Indiana, Ohio, Nebraska, Colorado, Montana, Wyoming, and North Dakota. Brindoval also operates a national e-commerce platform at www.crestviewhomegoods.com, through which it sells its full product assortment, including private-label brands, to customers across all fifty states. Brindoval's fiscal year 2022 revenue was approximately $2.1 billion, making it a substantial regional retailer with a significant private-label product strategy.

In July 2022, Brindoval launched its private-label "MERIDIAN FRESH" cleaning product line. The MERIDIAN FRESH line includes all-purpose cleaners, glass cleaners, disinfecting sprays, and bathroom cleaners — product categories that overlap directly and entirely with MCB's MERIDIAN cleaning product line. The MERIDIAN FRESH products were sold in all 148 Brindoval retail locations as well as on Brindoval's e-commerce website, giving the infringing products both regional brick-and-mortar distribution and nationwide online reach.

The packaging for Brindoval's MERIDIAN FRESH products featured a teal-and-white color scheme and a stylized wave device that MCB alleges — and the Court has now found at the preliminary-injunction stage — are confusingly similar to MCB's registered trade dress and stylized wave-device logo (U.S. Reg. No. 5,589,320). The overall visual impression of the MERIDIAN FRESH packaging, including the color palette, the wave motif, the typography, and the product bottle design, created a commercial impression that the Court characterized as a "near-replica" of MCB's established trade dress.

During its first five months on the market (July through November 2022), Brindoval's MERIDIAN FRESH line generated approximately $6.8 million in gross revenue, with projected annualized revenue of approximately $16.3 million based on the growth trajectory observed during that period. While these figures are modest relative to Brindoval's overall revenue, they represent a meaningful and rapidly growing presence in the private-label cleaning products category and a direct competitive threat to MCB's MERIDIAN brand, particularly in the overlapping Midwestern and Mountain West markets where both companies have a physical retail presence.

Notably, Brindoval filed a trademark application with the United States Patent and Trademark Office for the mark MERIDIAN FRESH in standard character form, International Class 3, under Serial No. 97/412,558, on May 12, 2022 — approximately two months before the commercial launch of the product line. The application was published for opposition on September 6, 2022. MCB timely filed a Notice of Opposition before the Trademark Trial and Appeal Board on October 14, 2022 (Opposition No. 91/278,415), which proceeding remains pending and has been suspended by agreement of the parties in light of the district court litigation.

C. Procedural Posture Leading to the PI Order

The following timeline summarizes the key procedural developments leading to the Court's January 9, 2023 PI Order:

• September 26, 2022: Calderwood & Harkness LLP, on behalf of MCB, transmitted a detailed cease-and-desist letter to Brindoval's General Counsel, Karen A. Whitfield, demanding that Brindoval immediately discontinue all use of the "MERIDIAN FRESH" mark and confusingly similar trade dress. The letter identified MCB's trademark registrations, summarized the basis for the infringement claim, and provided a fourteen-day deadline for voluntary compliance.

• October 10, 2022: Gregory T. Halverson of Halverson McKay & Pruitt LLP responded on behalf of Brindoval, denying that Brindoval's use of the MERIDIAN FRESH mark or its associated packaging constituted trademark infringement. The response asserted that the term "MERIDIAN" is descriptive or at most suggestive when used in connection with cleaning products, that the marks are sufficiently distinct in their commercial impressions, and that there is no likelihood of consumer confusion. Brindoval declined to modify its mark or packaging.

• October 14, 2022: MCB filed a Notice of Opposition before the Trademark Trial and Appeal Board, Opposition No. 91/278,415, opposing Brindoval's pending trademark application Serial No. 97/412,558 for MERIDIAN FRESH.

• November 7, 2022: MCB filed its Complaint in the United States District Court for the Southern District of New York, initiating Case No. 1:22-cv-09483. The Complaint asserts three causes of action: (1) trademark infringement under 15 U.S.C. § 1114(1) (Lanham Act Section 32); (2) false designation of origin and unfair competition under 15 U.S.C. § 1125(a) (Lanham Act Section 43(a)); and (3) trademark dilution under New York General Business Law § 360-l. The Complaint seeks permanent injunctive relief, an accounting of Brindoval's profits, compensatory and treble damages, and attorneys' fees.

• November 18, 2022: MCB filed its Motion for Preliminary Injunction, seeking to enjoin Brindoval from continued use of the MERIDIAN FRESH mark and the associated trade dress pending trial. The motion was supported by a memorandum of law, the Declaration of Rachel Dominguez (Vice President, Brand Management, MCB) with accompanying exhibits documenting MCB's trademark portfolio, marketing efforts, and evidence of actual consumer confusion incidents, and the Declaration of Dr. Elaine Furman (Lakeshore Brand Consulting LLC) presenting the results of a consumer confusion survey conducted under a Squirt-design / modified Eveready protocol.

• December 5, 2022: Brindoval filed its Answer and Counterclaim. The Answer denied the material allegations of the Complaint and asserted multiple affirmative defenses, including descriptive fair use, lack of likelihood of confusion, and laches. The Counterclaim sought a declaratory judgment of non-infringement. Brindoval's counsel of record are Gregory T. Halverson, Megan Janssen, and David Kowalski of Halverson McKay & Pruitt LLP, Minneapolis, Minnesota.

• December 19, 2022: The Court held a hearing on MCB's Motion for Preliminary Injunction. Both sides presented oral argument, and the Court heard limited testimony from Rachel Dominguez (for MCB) and Nathan Cho, Vice President of Private Label Development at Brindoval (for defendant). The Court took the matter under advisement.

• January 9, 2023: The Court issued its Memorandum Opinion and Order on the Motion for Preliminary Injunction, which is the subject of this memorandum.

III. Detailed Analysis of the Court's January 9, 2023 Order

A. The Court's Findings on Likelihood of Success on the Merits

The Court's analysis of MCB's likelihood of success on the merits was the most extensive portion of the PI Order, spanning approximately eighteen pages of the thirty-two-page opinion. The Court applied the well-established Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), multi-factor test for likelihood of confusion, which is the governing framework in the Second Circuit for trademark infringement claims under both Section 32 and Section 43(a) of the Lanham Act. The Court's findings on each factor, and its overall assessment, are summarized and analyzed below.

1. Polaroid Factor Analysis (Second Circuit Framework)

Strength of the Mark. The Court found that MCB's MERIDIAN mark is commercially strong. In reaching this conclusion, the Court cited several key evidentiary showings: (a) MCB's continuous use of the MERIDIAN mark in commerce since approximately 2011, representing over eleven years of uninterrupted use; (b) the significant sales volume associated with the mark, with the MERIDIAN cleaning line generating approximately $94.5 million in revenue in FY 2022 alone; (c) MCB's extensive and sustained advertising expenditures of approximately $47.2 million cumulatively from 2011 through 2022; and (d) the mark's incontestable status under Section 15 of the Lanham Act. The Court classified the MERIDIAN mark as "at least suggestive" on the distinctiveness spectrum, noting that while the term "meridian" has dictionary meanings (relating to a peak or zenith, or a geographic longitude line), it does not directly describe the characteristics of cleaning products. More significantly, the Court found that the mark has acquired "strong secondary meaning" among consumers of household cleaning products through MCB's prolonged use, substantial advertising investment, and demonstrated commercial success. This finding is important because the strength-of-the-mark factor is widely regarded as one of the most consequential in the Polaroid analysis, and the Court's finding of commercial strength provides a solid foundation for the infringement claim going forward.

Similarity of the Marks. The Court found that the MERIDIAN FRESH mark is "substantially similar" to MCB's MERIDIAN and MERIDIAN CLEAN marks. The Court's analysis focused on the dominant element of the accused mark — the word "MERIDIAN" — which is identical to MCB's core registered mark. The Court observed that the addition of the word "FRESH" to "MERIDIAN" does little to distinguish the marks in the marketplace, because "FRESH" is a merely descriptive modifier when used in connection with cleaning products, conveying an ordinary attribute of such goods (freshness or a fresh scent). The Court cited well-established Second Circuit authority for the proposition that the addition of a generic or descriptive term to a registered mark does not avoid a finding of confusing similarity. See, e.g., Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1078 (2d Cir. 1993). The Court further noted the visual and phonetic similarity between MERIDIAN FRESH and MCB's own MERIDIAN CLEAN mark, with both marks employing the identical dominant word "MERIDIAN" followed by a descriptive cleaning-related modifier. This factor weighed strongly in MCB's favor.

Proximity of Products. The Court found that the products sold under the competing marks are "identical or highly overlapping." Both MCB and Brindoval sell all-purpose cleaners, glass cleaners, disinfecting sprays, and related household cleaning products. The products are sold in the same International Class (IC 3) and compete for the same consumer dollar. The Court noted that this is not a case involving related but distinct product categories where an argument might be made that consumers would not associate the marks; rather, the marks are used on directly competing products on the same retail shelves. This factor weighed heavily in MCB's favor.

Bridging the Gap. The Court found that this factor favors MCB because both parties already compete in the identical product space. The "bridging the gap" inquiry is designed to assess the likelihood that the senior user will expand into the junior user's market; where the parties already occupy the same market, as here, the inquiry is moot and the factor weighs in the plaintiff's favor. The Court disposed of this factor quickly, consistent with the overwhelming overlap between the parties' product offerings.

Actual Confusion. The Court credited Dr. Elaine Furman's consumer confusion survey as probative evidence of likely confusion. The survey was conducted under a Squirt-design / modified Eveready protocol, which is a well-recognized and judicially accepted methodology for testing likelihood of confusion in trademark cases. Dr. Furman surveyed 612 respondents drawn from the relevant consumer population (adults aged 25–65 who had purchased household cleaning products within the preceding six months). The survey yielded a raw confusion rate of 38.6%, with 7.2% control-group noise, resulting in a net confusion rate of 31.4%. The Court found this net confusion rate "probative of likely confusion" and noted that it "substantially exceeds the thresholds that courts in this Circuit have found sufficient to support a finding of likelihood of confusion." The Court cited Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986), and other authority recognizing that net confusion rates above approximately 15–20% are generally considered strong evidence of likely confusion.

However, the Court also noted that Brindoval's rebuttal expert, Dr. Ronald Trask of Pinnacle Research Group Inc., raised methodological critiques of the Furman survey, including objections to the respondent screening criteria, the survey stimulus presentation (arguing that the stimuli overemphasized the trade-dress similarities rather than the word mark), and the control design. The Court stated that these critiques "raise questions that warrant fuller examination at trial" but did not, at the preliminary-injunction stage, find them sufficient to discredit the survey entirely. This language is significant — it signals that the Court takes the Trask critiques seriously enough to reserve judgment for trial, which means we should anticipate that Brindoval will press these arguments vigorously going forward, potentially including a Daubert challenge.

Good Faith. The Court's analysis of the good-faith factor was notable and generated some of the most useful language in the opinion from MCB's perspective. Brindoval presented testimony from Nathan Cho, its Vice President of Private Label Development, who stated that the MERIDIAN FRESH mark was selected independently through Brindoval's internal product development process and that neither he nor his team was aware of MCB's MERIDIAN marks at the time of adoption. The Court acknowledged this testimony but observed that Brindoval "did not present evidence of a comprehensive trademark clearance search prior to adoption" of the MERIDIAN FRESH mark, which the Court found "troubling." The Court noted that a company of Brindoval's size and sophistication — a $2.1 billion retailer with in-house legal counsel — would reasonably be expected to conduct a trademark clearance search before launching a new brand, particularly in a product category (household cleaning products) where established national brands are prevalent. While the Court stopped short of finding that Brindoval acted in bad faith, it stated that the absence of a clearance search "weighs against Brindoval and supports an inference that Brindoval failed to exercise reasonable diligence in selecting its mark." This finding provides a powerful factual predicate that can be further developed through discovery and exploited at trial.

Quality of Defendant's Product. The Court found this factor to be roughly neutral. Neither party presented substantial evidence of a significant disparity in product quality between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products. The Court noted that in cases involving directly competing products, a finding of comparable quality can still support confusion, because consumers may mistakenly believe the products emanate from the same source. However, the Court did not give this factor significant weight in either direction.

Consumer Sophistication. The Court observed that household cleaning products are "low-cost, impulse-purchase consumer goods," typically ranging in price from approximately $3.99 to $8.99 per unit, and that consumers exercise relatively little care or deliberation in selecting such products. The Court found that this low level of consumer sophistication "increases the likelihood of confusion," because consumers purchasing inexpensive everyday household products are less likely to scrutinize product packaging and more likely to rely on overall visual impressions, including brand names, color schemes, and logo designs. This factor weighed in MCB's favor.

Overall Assessment. The Court concluded that MCB had demonstrated a likelihood of success on the merits sufficient to support injunctive relief regarding the trade-dress elements of Brindoval's packaging. The Court found that the cumulative weight of the Polaroid factors — particularly the strength of MCB's mark, the substantial similarity of the marks, the identity of the product categories, the 31.4% net confusion rate from the Furman survey, the low consumer sophistication, and the absence of a trademark clearance search — "strongly favors a finding of likelihood of confusion."

However, the Court determined that the question was "closer" with respect to the word mark standing alone, divorced from the confusingly similar trade dress. The Court noted that Brindoval's arguments regarding the allegedly descriptive nature of "MERIDIAN" in certain contexts — while not persuasive at this stage as a complete defense — raised issues that "merit fuller factual development through discovery and, potentially, trial." The Court also referenced the so-called "house mark" effect, noting that Brindoval's own corporate name and branding appear on certain portions of the MERIDIAN FRESH product packaging and in-store shelf signage, which may mitigate some degree of word-mark confusion by signaling to consumers that the product is a Brindoval private-label offering. The Court concluded that this house-mark effect, combined with the need for further record development on the descriptiveness question, made the word-mark claim sufficiently uncertain to counsel against the extraordinary remedy of a preliminary injunction as to the word mark at this stage.

2. Trade Dress vs. Word Mark Distinction

The most analytically significant aspect of the PI Order is the Court's explicit bifurcation of the trade-dress and word-mark claims. The Court drew a clear distinction between the two categories of allegedly infringing conduct and applied different analyses to each.

With respect to the trade-dress elements — specifically, the teal-and-white color scheme and the stylized wave device on Brindoval's MERIDIAN FRESH packaging — the Court found that the combination of these elements created a "near-replica" of MCB's registered stylized logo mark (U.S. Reg. No. 5,589,320). The Court noted that the similarity between the wave devices was "striking" and that the teal-and-white color scheme, when combined with the wave motif, produced an overall commercial impression that "would likely cause point-of-sale confusion even among reasonably attentive consumers." The Court emphasized that this conclusion was supported not only by side-by-side visual comparison of the packaging but also by the confusion survey results and the consumer complaint evidence documented in Rachel Dominguez's declaration.

With respect to the word mark "MERIDIAN FRESH," the Court took a more cautious approach. While acknowledging the substantial similarity between MERIDIAN FRESH and MCB's registered marks, the Court found that the word-mark claim presented "a more nuanced question requiring assessment of the full marketplace context." Specifically, the Court identified several considerations that it believed warranted further development before the word mark could be enjoined: (a) the extent to which the word "MERIDIAN" has any descriptive connotation in the cleaning-products space; (b) the "house-mark" effect of the "Brindoval" brand name appearing on product packaging, in-store signage, and online product listings, which may provide some source-differentiating function; (c) the degree to which consumer confusion was driven by the trade-dress elements versus the word mark, a question that could not be fully answered by the current survey evidence; and (d) other marketplace factors better developed through discovery, including evidence of actual consumer purchasing behavior in the post-modification environment.

This bifurcation is strategically significant. On the positive side, it demonstrates that the Court takes the overall infringement claim seriously and has found likely confusion as to the most visually prominent infringing elements. On the other hand, it suggests that Judge Albright may require a more granular evidentiary showing to enjoin the word mark — which underscores the importance of developing supplemental survey evidence isolating word-mark confusion after Brindoval modifies its trade dress.

B. The Court's Findings on Irreparable Harm

The Court's analysis of irreparable harm tracked its bifurcated treatment of the trade-dress and word-mark claims.

As to the trade-dress elements, the Court found that irreparable harm was established under the Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), framework. The Second Circuit has held that while irreparable harm is not automatically presumed in all trademark cases following the Supreme Court's decision in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006), a strong showing of likelihood of confusion from near-identical trade dress creates a strong inference of irreparable injury. The Court found that the "near-replica" nature of Brindoval's trade dress, combined with the survey evidence and consumer complaint evidence, established that MCB would suffer ongoing erosion of its brand identity, loss of control over the goodwill associated with its trade dress, and reputational harm that could not be adequately remedied by monetary damages alone. The Court noted that "trademark infringement by its nature causes injuries — including loss of brand exclusivity, dilution of source-identifying function, and erosion of consumer trust — that are difficult or impossible to quantify in dollar terms."

As to the word mark, the Court found MCB's showing of irreparable harm to be "weaker standing alone." The Court acknowledged that Rachel Dominguez's declaration documented several instances of actual consumer confusion — including customer service complaints from consumers who purchased MERIDIAN FRESH products believing them to be MCB products, and social media posts reflecting consumer confusion — but noted that these incidents were "limited to a relatively small number" (the declaration identified approximately eighteen documented confusion incidents over the July–November 2022 period) and that the record would "benefit from supplementation through discovery" to develop a more comprehensive picture of the scope and frequency of consumer confusion in the marketplace.

Importantly, the Court also observed that "some portion" of the 31.4% net confusion rate demonstrated in the Furman survey "may be driven by the trade-dress similarities — the teal-and-white color scheme and the wave device — rather than the word mark in isolation." The Court reasoned that once Brindoval modifies its trade dress pursuant to the injunction, the residual level of consumer confusion attributable solely to the word mark "MERIDIAN FRESH" is "uncertain" and may be materially lower than the 31.4% rate reflected in the current survey, which tested confusion using the original (trade-dress-infringing) packaging. The Court found that this uncertainty counseled against the issuance of a preliminary injunction as to the word mark, noting that the evidence could be supplemented through discovery and that MCB retained the ability to seek additional relief at trial or through a renewed motion supported by additional evidence.

C. The Court's Findings on Balance of Hardships

The Court's balance-of-hardships analysis also reflected the bifurcated approach.

With respect to the trade-dress modification, the Court found that the balance of hardships favored MCB. The Court reasoned that requiring Brindoval to redesign its packaging — by removing the wave device and changing the teal-and-white color scheme — would impose costs on Brindoval but would not require Brindoval to discontinue its product line or withdraw products from the marketplace entirely. The Court noted that packaging redesigns are a routine aspect of the consumer-products business and that Brindoval, as a major retailer with substantial resources and a professional design and marketing infrastructure, was well-equipped to accomplish a packaging change within the forty-five-day compliance period. The Court also observed that any hardship to Brindoval was largely self-imposed, given the company's failure to conduct a comprehensive clearance search before adopting packaging that closely resembled MCB's registered trade dress.

As to enjoining the word mark, however, the Court found "more significant hardship to Brindoval." The Court noted that Brindoval had already invested in brand development for the MERIDIAN FRESH line, including marketing campaigns, retail shelf placements, and consumer loyalty-building efforts, and had generated $6.8 million in gross revenue during the product line's first five months on the market. Forcing Brindoval to adopt an entirely new brand name at the preliminary-injunction stage — before a full adjudication on the merits — could cause "disproportionate harm" to Brindoval relative to the "remaining uncertainty" regarding the strength of the word-mark confusion claim standing alone. The Court emphasized that preliminary injunctions are "extraordinary remedies" that should be "narrowly tailored to address the demonstrated harm" and that the trade-dress injunction adequately addressed the most clearly established source of confusion while preserving the word-mark question for full adjudication.

D. The Court's Findings on Public Interest

The Court's public-interest analysis was relatively brief. The Court acknowledged that the public has a strong interest in preventing consumer confusion in the marketplace, which favors MCB's position, but also noted the public interest in market competition, consumer access to affordable products, and the principle that courts should not issue "overly broad preliminary injunctions that remove products from the marketplace before a full adjudication on the merits." The Court found that the trade-dress injunction appropriately served the public interest by eliminating the most confusing elements of Brindoval's packaging while preserving Brindoval's ability to compete in the marketplace under a modified presentation. The Court did not find the public-interest factor dispositive in either direction as to the word mark.

E. Specific Terms of the Order

The operative terms of the PI Order require Brindoval to take the following actions:

(a) Cease use of the stylized wave device on all MERIDIAN FRESH packaging, marketing materials, in-store displays, point-of-sale materials, and digital marketing assets, including but not limited to the Brindoval website and social media channels;

(b) Cease use of the teal-and-white color scheme on MERIDIAN FRESH packaging and associated materials that, in the Court's view, mimics MCB's established trade dress for the MERIDIAN cleaning product line; and

(c) Complete both modifications within forty-five (45) days of the date of the Order (i.e., by approximately February 23, 2023).

The Court expressly stated that Brindoval is not enjoined from using the word mark "MERIDIAN FRESH" pending trial.

The Order also addressed the bond requirement under Federal Rule of Civil Procedure 65(c). The Court indicated that a security bond would be required but stated that the specific amount would be determined following submissions from both parties. The Court directed the parties to submit proposed bond amounts within fourteen days of the Order (i.e., by approximately January 23, 2023). We anticipate Brindoval will seek a substantial bond amount reflecting its claimed costs of packaging redesign and potential lost sales during the transition period, and we should be prepared to argue for a more modest bond reflecting the narrowly tailored scope of the injunction.

Finally, and significantly for MCB's long-term litigation strategy, the Order stated that it was "without prejudice to MCB's ability to seek additional injunctive relief at trial or upon a further showing of confusion arising from the word mark after trade-dress modification." This language is critically important because it preserves MCB's ability to seek a broader injunction — including an injunction of the word mark — either at trial or through a renewed preliminary injunction motion supported by post-modification confusion evidence. This reservation provides the strategic foundation for several of the recommendations set forth below.

IV. Implications for Trial Strategy

A. Strengths of Our Position Going Forward

The PI Order significantly strengthens MCB's position heading into discovery and trial. Several key advantages merit emphasis.

First, the partial grant constitutes a significant judicial endorsement of MCB's trademark rights and the overall infringement theory. The Court's Polaroid analysis found that the majority of factors weigh heavily in MCB's favor — strength of the mark, similarity of the marks, proximity of products, bridging the gap, actual confusion (as evidenced by the survey), the absence of a clearance search (bearing on good faith), and consumer sophistication. The Court's overall assessment that these factors "strongly favor a finding of likelihood of confusion" provides a powerful foundation for MCB's case at trial. While preliminary injunction findings are not formally binding at trial, they are practically influential and reflect the considered judgment of the trial court on the merits as developed to date.

Second, the Court's crediting of Dr. Furman's consumer confusion survey — finding the 31.4% net confusion rate "probative of likely confusion" — validates our survey methodology and provides significant evidentiary support for the infringement claim. A net confusion rate of 31.4% is well above the thresholds that the Second Circuit and district courts within the Circuit have consistently found sufficient to support a finding of likelihood of confusion. This survey evidence will be a centerpiece of the trial presentation, and its partial endorsement by the Court strengthens its likely impact on the finder of fact.

Third, the Court's finding regarding Brindoval's failure to conduct a comprehensive trademark clearance search before adopting the MERIDIAN FRESH mark is a factual observation that can be significantly exploited at trial on the good-faith / intent factor. The absence of a clearance search by a sophisticated $2.1 billion retailer with in-house legal counsel is probative of, at a minimum, willful blindness to MCB's established trademark rights. Through discovery, we intend to develop the record on this point further — including any internal communications reflecting awareness of MCB's MERIDIAN marks, any decision-making regarding whether to conduct a clearance search, and any advice received from trademark counsel or outside branding consultants. If we can establish that Brindoval was actually aware of MCB's marks before adoption, or that Brindoval deliberately chose not to conduct a clearance search, the good-faith factor could shift from merely "troubling" (as the Court characterized it at the PI stage) to affirmative evidence of bad faith, which would substantially strengthen MCB's case and could support enhanced remedies including an award of Brindoval's profits under 15 U.S.C. § 1117(a).

Fourth, the Court's trade-dress ruling creates a natural opportunity for a post-modification consumer confusion survey. Once Brindoval implements the required packaging changes — removing the wave device and altering the teal-and-white color scheme — a supplemental survey testing consumer confusion from the modified packaging would isolate the confusion attributable solely to the word mark "MERIDIAN FRESH." If the supplemental survey demonstrates that confusion persists at a significant level even without the confusingly similar trade dress, this would directly address the Court's expressed uncertainty about residual word-mark confusion and provide a strong basis for a renewed motion for additional injunctive relief or for a favorable ruling on the word-mark claim at trial.

B. Weaknesses and Risks

Notwithstanding the significant strengths of MCB's position, the PI Order also reveals certain vulnerabilities and risks that must be carefully managed.

First, the Court's refusal to enjoin the word mark signals that Judge Albright views the word-mark claim as presenting closer questions than the trade-dress claim. While the Court did not reject the word-mark infringement theory, its expressed reservations — particularly regarding the potential descriptive connotations of "MERIDIAN" in the cleaning-products context and the house-mark effect of the Brindoval brand name on product packaging — indicate areas where Brindoval's defenses may gain traction. We should be prepared for Brindoval to argue at trial that "MERIDIAN" is descriptive or at most weakly suggestive when used in connection with cleaning products, and that the addition of "FRESH" creates a commercially distinct overall impression. While we believe this argument is weak in light of the mark's incontestable status and the Court's finding of strong secondary meaning, it is clearly an argument that the Court found sufficiently colorable to warrant further development.

Second, Brindoval will inevitably argue at trial that the post-modification confusion rate has decreased — that once the confusingly similar trade dress is removed, consumers are no longer confused by the MERIDIAN FRESH word mark standing alone. This argument could potentially undermine the weight of Dr. Furman's pre-modification survey, which tested confusion using the original packaging that included both the trade-dress elements and the word mark. Brindoval's argument would be that the pre-modification survey overstates word-mark confusion because it captures the combined effect of the trade dress and the word mark, and that the more relevant data point is the post-modification confusion rate. This is precisely why a supplemental post-modification survey is strategically essential — it allows us to preempt this argument by affirmatively demonstrating that confusion persists even after the trade dress has been modified.

Third, the methodological critiques raised by Brindoval's rebuttal expert, Dr. Ronald Trask of Pinnacle Research Group Inc., remain a significant litigation risk. The Court expressly reserved these critiques for "fuller examination at trial," which means Brindoval has preserved its right to challenge the Furman survey through a Daubert motion or through aggressive cross-examination at trial. Dr. Trask's specific critiques — including objections to respondent screening criteria, stimulus presentation, and control design — must be carefully analyzed and addressed. We should prepare Dr. Furman for rigorous cross-examination on these issues and consider whether any supplemental analysis or methodology documentation should be prepared to bolster the survey's reliability. If a Daubert motion is filed, we will need to respond comprehensively with supporting authority and expert submissions.

Fourth, Brindoval's counterclaim for declaratory judgment of non-infringement remains pending and provides a platform for Brindoval to affirmatively challenge the scope and strength of MCB's marks. While counterclaims of this type are often defensive in nature, they give Brindoval an opportunity to develop evidence and arguments regarding the alleged weakness or descriptiveness of the MERIDIAN mark, third-party use of similar marks in the marketplace, and other defenses that could complicate the infringement analysis. We should monitor Brindoval's counterclaim strategy closely and ensure that MCB's discovery efforts are designed to develop evidence responsive to these anticipated arguments.

C. Recommended discovery Priorities

In light of the PI Order and the Court's expressed areas of uncertainty, we recommend the following discovery priorities:

Mark-Adoption Process and Intent. Targeted discovery into Brindoval's mark-adoption process should be the highest priority. The interrogatories and document requests already prepared for service (First Set of Interrogatories Nos. 1–25 and First Set of Requests for Production Nos. 1–30, targeted for service on January 30, 2023) include specific requests directed at the decision-making process that led to the selection and adoption of the MERIDIAN FRESH mark and associated trade dress. These requests should be pressed to the response deadline and followed up aggressively in the event of objections or incomplete responses. The focus of this discovery should be on Nathan Cho's role in the private-label development process, including any internal communications, presentations, or memoranda reflecting the mark-selection process; any awareness of MCB's MERIDIAN marks among Brindoval personnel before or during the adoption process; any consultation with trademark counsel, outside branding agencies, or search firms; and any deliberate decision not to conduct a comprehensive clearance search. If this discovery reveals evidence of actual knowledge or willful blindness, it will substantially strengthen the infringement claim and support enhanced remedies.

Sales and Financial Data. We should pursue Brindoval's sales and financial data for the MERIDIAN FRESH line on an ongoing basis, including post-PI Order data. This information is relevant to several purposes: (a) calculating damages and unjust enrichment; (b) assessing the ongoing market impact of the infringing mark; (c) determining the effectiveness of the trade-dress modification in reducing confusion; and (d) informing settlement valuation. We recommend seeking monthly or quarterly sales reports, revenue data, profit margins, marketing expenditures, and customer acquisition metrics for the MERIDIAN FRESH line.

Supplemental Consumer Confusion Survey. As discussed above, we strongly recommend retaining Dr. Elaine Furman of Lakeshore Brand Consulting to design and conduct a supplemental consumer confusion survey using Brindoval's modified (post-PI) packaging. This survey should be designed to isolate word-mark confusion by presenting respondents with Brindoval's modified packaging — which will no longer include the wave device or teal-and-white color scheme — alongside MCB's MERIDIAN packaging. The survey should employ the same general Squirt-design / modified Eveready protocol used in the original survey, with any methodological refinements that Dr. Furman believes are warranted to address the Trask critiques. The timing of this survey will depend on when Brindoval implements its packaging modifications, but we should begin planning discussions with Dr. Furman immediately so that the survey can be deployed as soon as the modified packaging is available in the marketplace. A supplemental survey demonstrating persistent confusion at a significant level (even at a lower rate than the pre-modification survey) would be powerful evidence and would directly rebut Brindoval's anticipated argument that confusion has dissipated.

Key Depositions. We recommend deposing the following individuals at Brindoval:

• Douglas P. Lindstrom, Chief Executive Officer — to establish corporate-level knowledge and oversight of the private-label development process, including any involvement in or awareness of the MERIDIAN FRESH launch and subsequent trademark dispute;

• Karen A. Whitfield, General Counsel — to explore the legal department's role (or lack thereof) in the mark-adoption and clearance process, any legal advice provided regarding the MERIDIAN FRESH mark, and Brindoval's response to MCB's cease-and-desist letter;

• Nathan Cho, Vice President, Private Label Development — to probe the mark-selection process in detail, including Cho's testimony at the PI hearing regarding independent selection, any awareness of MCB's marks, and the design process for the MERIDIAN FRESH trade dress; and

• Any outside branding consultant or trademark counsel who may have been consulted prior to the MERIDIAN FRESH launch — to establish whether a clearance search was conducted, what results were reported, and whether any advice was given regarding the risk of confusion with MCB's marks.

These depositions will be critical to developing the factual record on the good-faith / intent factor and to undermining Brindoval's claimed independent adoption defense.

V. Assessment of Potential Interlocutory Appeal

A. Standard for Interlocutory Appeal of PI Denial (Word Mark)

Under 28 U.S.C. § 1292(a)(1), orders "granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions" are immediately appealable to the Court of Appeals as of right. This statute provides an exception to the general final-judgment rule of 28 U.S.C. § 1291 and reflects the recognized principle that interlocutory injunctive orders can cause immediate and significant consequences to the affected parties. Because the PI Order includes a partial denial — the Court's refusal to enjoin the MERIDIAN FRESH word mark — MCB has the right to pursue an immediate appeal of that partial denial to the United States Court of Appeals for the Second Circuit.

The standard of review on appeal would be abuse of discretion for the overall preliminary injunction decision, with underlying factual findings reviewed for clear error and legal conclusions (including the application of the Polaroid factors) reviewed de novo. This standard gives the appellate court meaningful latitude to defer to the trial court's exercise of discretion, particularly on fact-intensive questions such as the balance of hardships and the weight to be accorded survey evidence.

B. Arguments for Appeal

Several arguments could be advanced in support of an interlocutory appeal of the partial denial.

First, the Court's bifurcation of the trade-dress and word-mark claims arguably underweights the cumulative likelihood of confusion from the totality of Brindoval's infringing conduct. The Polaroid analysis is designed to assess likelihood of confusion holistically, considering all relevant factors in combination. By disaggregating the trade-dress elements from the word mark and requiring a separate showing of confusion from the word mark "standing alone," the Court may have applied a more demanding standard than the Second Circuit's precedent requires. The proper inquiry is whether Brindoval's overall use of the MERIDIAN FRESH mark and associated trade dress creates a likelihood of confusion — not whether each individual element would independently cause confusion in isolation.

Second, the 31.4% net confusion rate from Dr. Furman's survey far exceeds the threshold that courts in the Second Circuit have consistently found sufficient to establish likelihood of confusion. Net confusion rates of 15–20% have been routinely found probative, and rates above 25% are generally considered strong evidence. A rate of 31.4% is well within the range that should support injunctive relief as a matter of law, and the Court's decision to credit the survey as "probative" while declining to act on it with respect to the word mark reflects an internal inconsistency that the Second Circuit could correct.

Third, the Court's speculation that confusion may dissipate after the trade-dress modification is not supported by the evidentiary record. The Court's observation that "some portion" of the surveyed confusion "may be driven by the trade-dress similarities rather than the word mark in isolation" is a hypothesis, not a finding based on evidence. The Furman survey was not designed to decompose confusion into trade-dress-attributable and word-mark-attributable components, and the Court had no evidentiary basis for concluding that a significant portion of the confusion would dissipate after the trade-dress changes. Speculation about future confusion levels is not an appropriate basis for denying injunctive relief where the current evidence strongly supports a finding of likely confusion.

C. Arguments Against Appeal (Risks)

Notwithstanding the foregoing arguments, there are significant practical and strategic risks associated with an interlocutory appeal that, in our assessment, outweigh the potential benefits.

First, the partial grant is a favorable outcome overall, and an appeal risks drawing negative attention to a ruling that is largely beneficial to MCB. Appellate courts reviewing partial grants of preliminary injunctions may examine the entire ruling, including the portion favorable to the appellant, and an unsuccessful appeal could result in unfavorable appellate dicta or, in a worst-case scenario, a modification or reversal of the trade-dress injunction. While the risk of reversal is low given the Court's thorough analysis and the strong evidentiary record, it is a risk that must be weighed against the uncertain benefits of appeal.

Second, the Second Circuit is likely to defer to Judge Albright's factual assessment and exercise of discretion under the abuse-of-discretion standard. The Court's analysis was careful, detailed, and grounded in the evidence. The partial denial was not based on a legal error but on a factual judgment that the word-mark confusion claim, standing alone, was sufficiently uncertain to warrant further development before the extraordinary remedy of a preliminary injunction could be justified. This type of discretionary, fact-intensive determination is precisely the kind of ruling that appellate courts are most reluctant to disturb.

Third, an interlocutory appeal could introduce significant delay into the case. Appellate briefing, oral argument scheduling, and opinion drafting could easily consume six to twelve months or more. During this period, Brindoval would continue to operate under the MERIDIAN FRESH mark (with modified trade dress), building additional marketplace presence and consumer recognition for the MERIDIAN FRESH name. This continued use could complicate MCB's infringement claim in several ways: it could give rise to arguments about marketplace coexistence, consumer awareness of the two distinct marks, and progressive weakening of the confusion claim over time. Additionally, the longer Brindoval operates under the mark, the stronger its potential laches defense becomes, even though laches typically does not bar claims for prospective injunctive relief.

Fourth, appellate briefing and argument would add significant cost and attorney time to the matter. Based on our assessment, appellate briefing, preparation, and argument would require approximately 200–300 additional attorney hours and associated costs of approximately $150,000–$250,000, depending on the complexity of the appellate record and the scope of the Second Circuit's review. These resources could be more productively directed toward discovery, the supplemental survey, deposition preparation, and trial preparation.

D. Recommendation

Based on the foregoing analysis, we recommend against pursuing an interlocutory appeal at this time. The partial grant provides meaningful relief — eliminating the most egregious trade-dress infringement — and substantial litigation leverage. The better strategic approach, in our judgment, is to use the favorable trade-dress ruling as a foundation, develop the word-mark confusion case through targeted discovery and a supplemental post-modification survey, and revisit the question of additional injunctive relief closer to trial, either through a renewed motion for preliminary injunction supported by new evidence or through the trial itself. An appeal at this stage carries risks that are disproportionate to the potential benefits and could divert resources from the core litigation strategy.

We remain available to revisit this recommendation if circumstances change — for example, if the discovery process reveals particularly strong evidence of bad faith or if the supplemental survey demonstrates very high residual word-mark confusion that would warrant an urgent request for additional injunctive relief.

VI. Settlement Leverage and Implications

A. Enhanced Leverage from PI Order

The PI Order materially enhances MCB's settlement leverage. The partial grant demonstrates that the Court takes MCB's infringement claims seriously and that Brindoval's overall infringing conduct — particularly the trade-dress elements — crosses the line of actionable trademark infringement. This judicial finding sends a clear signal to Brindoval and its counsel that the litigation presents genuine and significant risk for the defendant.

Brindoval now faces a multi-dimensional set of costs and pressures. First, it must absorb the immediate operational burden of redesigning MERIDIAN FRESH packaging across its entire product line and distribution network within forty-five days. This includes modifying packaging for multiple product SKUs, updating printed marketing materials and in-store displays, revising digital assets on Brindoval's website and social media channels, coordinating with contract manufacturers and packaging suppliers, and managing the logistics of transitioning inventory across 148 retail locations. For a product line that generated $6.8 million in revenue over five months, the cost of a complete packaging overhaul — including design, manufacturing, distribution, and destruction or reconfiguration of existing inventory — could be substantial.

Second, Brindoval faces the prospect of continued litigation with the real possibility of a more comprehensive injunction at trial. The Court's express reservation that MCB may seek additional injunctive relief — either at trial or upon a further showing of confusion from the word mark after trade-dress modification — means that Brindoval cannot treat the partial denial as a final resolution of the word-mark claim. The threat of a broader injunction requiring a complete rebrand from MERIDIAN FRESH to an entirely new name hangs over Brindoval's business planning and creates ongoing uncertainty.

Third, the litigation itself imposes significant costs on Brindoval, including legal fees for Halverson McKay & Pruitt LLP, management distraction, and the reputational risk of an adverse trial outcome. As the case proceeds through discovery toward trial, these costs will escalate.

B. Potential Settlement Framework

The PI Order creates a natural inflection point for settlement discussions. Brindoval's leadership and counsel are likely reassessing their risk exposure in light of the Court's ruling, and this moment of strategic reassessment presents an opportunity for MCB to initiate or engage in productive negotiations.

Possible settlement structures could include the following:

(a) Complete Cessation of the MERIDIAN FRESH Mark. This is MCB's preferred outcome and the structure that provides the most complete brand protection. Under this structure, Brindoval would agree to permanently discontinue all use of the MERIDIAN FRESH mark and any confusingly similar mark in connection with cleaning products, withdraw its pending trademark application (Serial No. 97/412,558), and consent to judgment on the infringement claims. In exchange, MCB might agree to a negotiated phase-out period, limited transitional use provisions, and a monetary payment or waiver of damages.

(b) Coexistence Agreement with Mark Modification. Under this structure, Brindoval would agree to modify the MERIDIAN FRESH mark to incorporate distinguishing elements that reduce the likelihood of confusion — for example, by adding "BRINDOVAL" as a prefix (e.g., "BRINDOVAL'S MERIDIAN FRESH") or by adopting other distinguishing branding elements. The coexistence agreement would include negotiated restrictions on channels of trade, geographic markets, product categories, and marketing practices, as well as a monetary payment to MCB reflecting both past damages and the ongoing right to use a modified version of the mark.

(c) Licensing Arrangement. Under this structure, Brindoval would obtain a formal trademark license from MCB to use the MERIDIAN FRESH mark (or a modified version) subject to MCB's quality-control oversight and ongoing royalty payments. This structure would preserve MCB's trademark rights, provide a revenue stream, and give MCB contractual control over the quality and presentation of products sold under the mark. However, this structure carries risks, including the potential for consumer confusion if consumers perceive the licensed products as MCB products, and the administrative burden of quality-control compliance.

We note that the Court has scheduled initial disclosures for January 23, 2023, and the case is progressing on the standard litigation track. It is possible that the Court may order mediation at a subsequent case management conference, which would provide a structured forum for settlement discussions. We should be prepared for this eventuality and should develop a comprehensive mediation strategy in advance.

C. Recommendation

We recommend that MCB and Calderwood & Harkness use the momentum from the PI Order to explore settlement discussions with Brindoval and Halverson McKay & Pruitt LLP in parallel with continuing to prepare for trial. The two tracks are complementary: vigorous litigation preparation strengthens MCB's leverage at the negotiating table, while productive settlement discussions may avoid the costs and uncertainties of trial.

If court-ordered mediation is scheduled, MCB should enter mediation from a position of strength, armed with the PI Order, the survey evidence, and the strong judicial findings on the Polaroid factors. MCB's mediation presentation should emphasize (a) the Court's finding of likely confusion from the trade dress and the s

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Alan Ngo, Responsible Partner, intellectual Property
FROM: Christy Bauer, Lead Associate, intellectual Property; Peter Vassiliev, Working Associate, intellectual Property
DATE: January 11, 2023
RE: Analysis of Court's Preliminary Injunction Order — Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., Case No. 1:22-cv-09483 (S.D.N.Y.)
MATTER NO.: 1011-00003
BILLING CODE: 11470-001
PRIVILEGE DESIGNATION: This memorandum is protected by attorney-client privilege and the attorney work-product doctrine. It is prepared in connection with the provision of legal advice and in anticipation of continued litigation. Do not distribute outside the engagement team without prior authorization.
I. Executive Summary
On January 9, 2023, the Honorable Patricia M. Albright of the United States District Court for the Southern District of New York issued an Order on Meridian Consumer Brands LLC's ("MCB") Motion for Preliminary Injunction (filed November 18, 2022) in Case No. 1:22-cv-09483 (the "PI Order"). This memorandum provides a detailed analysis of the PI Order, its implications for the litigation and trial strategy, an assessment of potential interlocutory appeal, and recommendations regarding settlement leverage and immediate next steps.
The Court granted the motion in part, ordering Brindoval Home Goods Inc. ("Brindoval") to modify its packaging trade dress within forty-five (45) days of the Order — specifically, to (a) remove the stylized wave device from all MERIDIAN FRESH packaging and marketing materials, and (b) discontinue the teal-and-white color scheme on MERIDIAN FRESH packaging that the Court found mimics MCB's registered trade dress. The compliance deadline falls on approximately February 23, 2023.
The Court denied the motion in part, declining to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial. In reaching this conclusion, the Court found that MCB had not demonstrated a sufficient likelihood of irreparable harm arising from the word mark alone — as distinguished from the trade-dress elements — to justify the extraordinary remedy of a pretrial injunction of the mark itself. The Court expressly noted, however, that its ruling was without prejudice to MCB's ability to seek additional injunctive relief at trial or upon a further showing of confusion arising from the word mark after the trade-dress modifications have been implemented.
Our net assessment is as follows: The partial grant represents a meaningful and strategically significant victory for MCB. It eliminates the most visually egregious source of trade-dress confusion in the marketplace — the near-replica packaging featuring MCB's registered wave device and signature teal-and-white color scheme — and provides a strong judicial endorsement of the core infringement theory. At the same time, the denial of injunctive relief as to the word mark leaves Brindoval free to continue selling products under the "MERIDIAN FRESH" name, which remains the central word-mark infringement claim in this action. This outcome creates both meaningful litigation leverage and certain strategic risks that require careful planning as the case proceeds through discovery toward trial. The sections that follow address each of these considerations in detail.
II. Background
A. MCB's Trademark Portfolio
Meridian Consumer Brands LLC is a Delaware limited liability company with its principal offices in Stamford, Connecticut. MCB manufactures and distributes a broad line of household cleaning, personal care, and home fragrance products through national retailers, grocery chains, and direct-to-consumer e-commerce channels. Its flagship brand, MERIDIAN, has been in continuous use in commerce since approximately 2011 and is supported by a robust portfolio of federal trademark registrations.
The registrations most directly relevant to this litigation are as follows:
• U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark), International Class 3, covering household cleaning products. Registered August 14, 2012. MCB has maintained continuous use in commerce since at least 2011. The registration is incontestable under Section 15 of the Lanham Act (15 U.S.C. § 1065), having been in continuous use for more than five consecutive years following registration with no pending challenge.
• U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark), International Class 3, covering all-purpose cleaners, glass cleaners, disinfecting sprays, and related products. Registered October 18, 2016. This registration extends MCB's trademark protection to the MERIDIAN family of marks in the cleaning-products category.
• U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo incorporating a wave device), International Class 3, covering the same product categories. Registered July 10, 2018. This design mark is particularly relevant to the trade-dress component of the litigation, as the Court found Brindoval's packaging to be a "near-replica" of this registered stylized logo.
MCB's MERIDIAN-branded cleaning product line has achieved substantial commercial success since its launch. In fiscal year 2022, the MERIDIAN cleaning line generated approximately $94.5 million in revenue, representing approximately 24.4% of MCB's total consolidated revenue of approximately $387 million. The MERIDIAN brand is the single largest revenue contributor within MCB's product portfolio, and its market position is central to the company's long-term growth strategy. MCB distributes MERIDIAN cleaning products through approximately 14,000 retail points of sale nationwide, including major national retailers such as Target, Walmart, Bramwell Partners LLC, and Harborview Enterprises, as well as through its own direct-to-consumer website.
MCB's cumulative advertising and promotional expenditure on the MERIDIAN cleaning line from 2011 through 2022 totals approximately $47.2 million, representing an average annual spend of approximately $3.93 million. This investment has included national television advertising, digital and social media campaigns, point-of-sale displays, trade-show participation, and influencer marketing programs. The significance of these expenditures is reflected in the Court's finding that the MERIDIAN mark has acquired strong commercial distinctiveness and secondary meaning in the household cleaning products market.
B. Brindoval's Infringing Activity
Brindoval Home Goods Inc. is a Minnesota corporation headquartered in Bloomington, Minnesota, operating 148 retail home-goods stores across twelve Midwestern and Mountain West states, including Minnesota, Wisconsin, Iowa, Illinois, Michigan, Indiana, Ohio, Nebraska, Colorado, Montana, Wyoming, and North Dakota. Brindoval also operates a national e-commerce platform at www.crestviewhomegoods.com, through which it sells its full product assortment, including private-label brands, to customers across all fifty states. Brindoval's fiscal year 2022 revenue was approximately $2.1 billion, making it a substantial regional retailer with a significant private-label product strategy.
In July 2022, Brindoval launched its private-label "MERIDIAN FRESH" cleaning product line. The MERIDIAN FRESH line includes all-purpose cleaners, glass cleaners, disinfecting sprays, and bathroom cleaners — product categories that overlap directly and entirely with MCB's MERIDIAN cleaning product line. The MERIDIAN FRESH products were sold in all 148 Brindoval retail locations as well as on Brindoval's e-commerce website, giving the infringing products both regional brick-and-mortar distribution and nationwide online reach.
The packaging for Brindoval's MERIDIAN FRESH products featured a teal-and-white color scheme and a stylized wave device that MCB alleges — and the Court has now found at the preliminary-injunction stage — are confusingly similar to MCB's registered trade dress and stylized wave-device logo (U.S. Reg. No. 5,589,320). The overall visual impression of the MERIDIAN FRESH packaging, including the color palette, the wave motif, the typography, and the product bottle design, created a commercial impression that the Court characterized as a "near-replica" of MCB's established trade dress.
During its first five months on the market (July through November 2022), Brindoval's MERIDIAN FRESH line generated approximately $6.8 million in gross revenue, with projected annualized revenue of approximately $16.3 million based on the growth trajectory observed during that period. While these figures are modest relative to Brindoval's overall revenue, they represent a meaningful and rapidly growing presence in the private-label cleaning products category and a direct competitive threat to MCB's MERIDIAN brand, particularly in the overlapping Midwestern and Mountain West markets where both companies have a physical retail presence.
Notably, Brindoval filed a trademark application with the United States Patent and Trademark Office for the mark MERIDIAN FRESH in standard character form, International Class 3, under Serial No. 97/412,558, on May 12, 2022 — approximately two months before the commercial launch of the product line. The application was published for opposition on September 6, 2022. MCB timely filed a Notice of Opposition before the Trademark Trial and Appeal Board on October 14, 2022 (Opposition No. 91/278,415), which proceeding remains pending and has been suspended by agreement of the parties in light of the district court litigation.
C. Procedural Posture Leading to the PI Order
The following timeline summarizes the key procedural developments leading to the Court's January 9, 2023 PI Order:
• September 26, 2022: Calderwood & Harkness LLP, on behalf of MCB, transmitted a detailed cease-and-desist letter to Brindoval's General Counsel, Karen A. Whitfield, demanding that Brindoval immediately discontinue all use of the "MERIDIAN FRESH" mark and confusingly similar trade dress. The letter identified MCB's trademark registrations, summarized the basis for the infringement claim, and provided a fourteen-day deadline for voluntary compliance.
• October 10, 2022: Gregory T. Halverson of Halverson McKay & Pruitt LLP responded on behalf of Brindoval, denying that Brindoval's use of the MERIDIAN FRESH mark or its associated packaging constituted trademark infringement. The response asserted that the term "MERIDIAN" is descriptive or at most suggestive when used in connection with cleaning products, that the marks are sufficiently distinct in their commercial impressions, and that there is no likelihood of consumer confusion. Brindoval declined to modify its mark or packaging.
• October 14, 2022: MCB filed a Notice of Opposition before the Trademark Trial and Appeal Board, Opposition No. 91/278,415, opposing Brindoval's pending trademark application Serial No. 97/412,558 for MERIDIAN FRESH.
• November 7, 2022: MCB filed its Complaint in the United States District Court for the Southern District of New York, initiating Case No. 1:22-cv-09483. The Complaint asserts three causes of action: (1) trademark infringement under 15 U.S.C. § 1114(1) (Lanham Act Section 32); (2) false designation of origin and unfair competition under 15 U.S.C. § 1125(a) (Lanham Act Section 43(a)); and (3) trademark dilution under New York General Business Law § 360-l. The Complaint seeks permanent injunctive relief, an accounting of Brindoval's profits, compensatory and treble damages, and attorneys' fees.
• November 18, 2022: MCB filed its Motion for Preliminary Injunction, seeking to enjoin Brindoval from continued use of the MERIDIAN FRESH mark and the associated trade dress pending trial. The motion was supported by a memorandum of law, the Declaration of Rachel Dominguez (Vice President, Brand Management, MCB) with accompanying exhibits documenting MCB's trademark portfolio, marketing efforts, and evidence of actual consumer confusion incidents, and the Declaration of Dr. Elaine Furman (Lakeshore Brand Consulting LLC) presenting the results of a consumer confusion survey conducted under a Squirt-design / modified Eveready protocol.
• December 5, 2022: Brindoval filed its Answer and Counterclaim. The Answer denied the material allegations of the Complaint and asserted multiple affirmative defenses, including descriptive fair use, lack of likelihood of confusion, and laches. The Counterclaim sought a declaratory judgment of non-infringement. Brindoval's counsel of record are Gregory T. Halverson, Megan Janssen, and David Kowalski of Halverson McKay & Pruitt LLP, Minneapolis, Minnesota.
• December 19, 2022: The Court held a hearing on MCB's Motion for Preliminary Injunction. Both sides presented oral argument, and the Court heard limited testimony from Rachel Dominguez (for MCB) and Nathan Cho, Vice President of Private Label Development at Brindoval (for defendant). The Court took the matter under advisement.
• January 9, 2023: The Court issued its Memorandum Opinion and Order on the Motion for Preliminary Injunction, which is the subject of this memorandum.
III. Detailed Analysis of the Court's January 9, 2023 Order
A. The Court's Findings on Likelihood of Success on the Merits
The Court's analysis of MCB's likelihood of success on the merits was the most extensive portion of the PI Order, spanning approximately eighteen pages of the thirty-two-page opinion. The Court applied the well-established Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), multi-factor test for likelihood of confusion, which is the governing framework in the Second Circuit for trademark infringement claims under both Section 32 and Section 43(a) of the Lanham Act. The Court's findings on each factor, and its overall assessment, are summarized and analyzed below.
1. Polaroid Factor Analysis (Second Circuit Framework)
Strength of the Mark. The Court found that MCB's MERIDIAN mark is commercially strong. In reaching this conclusion, the Court cited several key evidentiary showings: (a) MCB's continuous use of the MERIDIAN mark in commerce since approximately 2011, representing over eleven years of uninterrupted use; (b) the significant sales volume associated with the mark, with the MERIDIAN cleaning line generating approximately $94.5 million in revenue in FY 2022 alone; (c) MCB's extensive and sustained advertising expenditures of approximately $47.2 million cumulatively from 2011 through 2022; and (d) the mark's incontestable status under Section 15 of the Lanham Act. The Court classified the MERIDIAN mark as "at least suggestive" on the distinctiveness spectrum, noting that while the term "meridian" has dictionary meanings (relating to a peak or zenith, or a geographic longitude line), it does not directly describe the characteristics of cleaning products. More significantly, the Court found that the mark has acquired "strong secondary meaning" among consumers of household cleaning products through MCB's prolonged use, substantial advertising investment, and demonstrated commercial success. This finding is important because the strength-of-the-mark factor is widely regarded as one of the most consequential in the Polaroid analysis, and the Court's finding of commercial strength provides a solid foundation for the infringement claim going forward.
Similarity of the Marks. The Court found that the MERIDIAN FRESH mark is "substantially similar" to MCB's MERIDIAN and MERIDIAN CLEAN marks. The Court's analysis focused on the dominant element of the accused mark — the word "MERIDIAN" — which is identical to MCB's core registered mark. The Court observed that the addition of the word "FRESH" to "MERIDIAN" does little to distinguish the marks in the marketplace, because "FRESH" is a merely descriptive modifier when used in connection with cleaning products, conveying an ordinary attribute of such goods (freshness or a fresh scent). The Court cited well-established Second Circuit authority for the proposition that the addition of a generic or descriptive term to a registered mark does not avoid a finding of confusing similarity. See, e.g., Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1078 (2d Cir. 1993). The Court further noted the visual and phonetic similarity between MERIDIAN FRESH and MCB's own MERIDIAN CLEAN mark, with both marks employing the identical dominant word "MERIDIAN" followed by a descriptive cleaning-related modifier. This factor weighed strongly in MCB's favor.
Proximity of Products. The Court found that the products sold under the competing marks are "identical or highly overlapping." Both MCB and Brindoval sell all-purpose cleaners, glass cleaners, disinfecting sprays, and related household cleaning products. The products are sold in the same International Class (IC 3) and compete for the same consumer dollar. The Court noted that this is not a case involving related but distinct product categories where an argument might be made that consumers would not associate the marks; rather, the marks are used on directly competing products on the same retail shelves. This factor weighed heavily in MCB's favor.
Bridging the Gap. The Court found that this factor favors MCB because both parties already compete in the identical product space. The "bridging the gap" inquiry is designed to assess the likelihood that the senior user will expand into the junior user's market; where the parties already occupy the same market, as here, the inquiry is moot and the factor weighs in the plaintiff's favor. The Court disposed of this factor quickly, consistent with the overwhelming overlap between the parties' product offerings.
Actual Confusion. The Court credited Dr. Elaine Furman's consumer confusion survey as probative evidence of likely confusion. The survey was conducted under a Squirt-design / modified Eveready protocol, which is a well-recognized and judicially accepted methodology for testing likelihood of confusion in trademark cases. Dr. Furman surveyed 612 respondents drawn from the relevant consumer population (adults aged 25–65 who had purchased household cleaning products within the preceding six months). The survey yielded a raw confusion rate of 38.6%, with 7.2% control-group noise, resulting in a net confusion rate of 31.4%. The Court found this net confusion rate "probative of likely confusion" and noted that it "substantially exceeds the thresholds that courts in this Circuit have found sufficient to support a finding of likelihood of confusion." The Court cited Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986), and other authority recognizing that net confusion rates above approximately 15–20% are generally considered strong evidence of likely confusion.
However, the Court also noted that Brindoval's rebuttal expert, Dr. Ronald Trask of Pinnacle Research Group Inc., raised methodological critiques of the Furman survey, including objections to the respondent screening criteria, the survey stimulus presentation (arguing that the stimuli overemphasized the trade-dress similarities rather than the word mark), and the control design. The Court stated that these critiques "raise questions that warrant fuller examination at trial" but did not, at the preliminary-injunction stage, find them sufficient to discredit the survey entirely. This language is significant — it signals that the Court takes the Trask critiques seriously enough to reserve judgment for trial, which means we should anticipate that Brindoval will press these arguments vigorously going forward, potentially including a Daubert challenge.
Good Faith. The Court's analysis of the good-faith factor was notable and generated some of the most useful language in the opinion from MCB's perspective. Brindoval presented testimony from Nathan Cho, its Vice President of Private Label Development, who stated that the MERIDIAN FRESH mark was selected independently through Brindoval's internal product development process and that neither he nor his team was aware of MCB's MERIDIAN marks at the time of adoption. The Court acknowledged this testimony but observed that Brindoval "did not present evidence of a comprehensive trademark clearance search prior to adoption" of the MERIDIAN FRESH mark, which the Court found "troubling." The Court noted that a company of Brindoval's size and sophistication — a $2.1 billion retailer with in-house legal counsel — would reasonably be expected to conduct a trademark clearance search before launching a new brand, particularly in a product category (household cleaning products) where established national brands are prevalent. While the Court stopped short of finding that Brindoval acted in bad faith, it stated that the absence of a clearance search "weighs against Brindoval and supports an inference that Brindoval failed to exercise reasonable diligence in selecting its mark." This finding provides a powerful factual predicate that can be further developed through discovery and exploited at trial.
Quality of Defendant's Product. The Court found this factor to be roughly neutral. Neither party presented substantial evidence of a significant disparity in product quality between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products. The Court noted that in cases involving directly competing products, a finding of comparable quality can still support confusion, because consumers may mistakenly believe the products emanate from the same source. However, the Court did not give this factor significant weight in either direction.
Consumer Sophistication. The Court observed that household cleaning products are "low-cost, impulse-purchase consumer goods," typically ranging in price from approximately $3.99 to $8.99 per unit, and that consumers exercise relatively little care or deliberation in selecting such products. The Court found that this low level of consumer sophistication "increases the likelihood of confusion," because consumers purchasing inexpensive everyday household products are less likely to scrutinize product packaging and more likely to rely on overall visual impressions, including brand names, color schemes, and logo designs. This factor weighed in MCB's favor.
Overall Assessment. The Court concluded that MCB had demonstrated a likelihood of success on the merits sufficient to support injunctive relief regarding the trade-dress elements of Brindoval's packaging. The Court found that the cumulative weight of the Polaroid factors — particularly the strength of MCB's mark, the substantial similarity of the marks, the identity of the product categories, the 31.4% net confusion rate from the Furman survey, the low consumer sophistication, and the absence of a trademark clearance search — "strongly favors a finding of likelihood of confusion."
However, the Court determined that the question was "closer" with respect to the word mark standing alone, divorced from the confusingly similar trade dress. The Court noted that Brindoval's arguments regarding the allegedly descriptive nature of "MERIDIAN" in certain contexts — while not persuasive at this stage as a complete defense — raised issues that "merit fuller factual development through discovery and, potentially, trial." The Court also referenced the so-called "house mark" effect, noting that Brindoval's own corporate name and branding appear on certain portions of the MERIDIAN FRESH product packaging and in-store shelf signage, which may mitigate some degree of word-mark confusion by signaling to consumers that the product is a Brindoval private-label offering. The Court concluded that this house-mark effect, combined with the need for further record development on the descriptiveness question, made the word-mark claim sufficiently uncertain to counsel against the extraordinary remedy of a preliminary injunction as to the word mark at this stage.
2. Trade Dress vs. Word Mark Distinction
The most analytically significant aspect of the PI Order is the Court's explicit bifurcation of the trade-dress and word-mark claims. The Court drew a clear distinction between the two categories of allegedly infringing conduct and applied different analyses to each.
With respect to the trade-dress elements — specifically, the teal-and-white color scheme and the stylized wave device on Brindoval's MERIDIAN FRESH packaging — the Court found that the combination of these elements created a "near-replica" of MCB's registered stylized logo mark (U.S. Reg. No. 5,589,320). The Court noted that the similarity between the wave devices was "striking" and that the teal-and-white color scheme, when combined with the wave motif, produced an overall commercial impression that "would likely cause point-of-sale confusion even among reasonably attentive consumers." The Court emphasized that this conclusion was supported not only by side-by-side visual comparison of the packaging but also by the confusion survey results and the consumer complaint evidence documented in Rachel Dominguez's declaration.
With respect to the word mark "MERIDIAN FRESH," the Court took a more cautious approach. While acknowledging the substantial similarity between MERIDIAN FRESH and MCB's registered marks, the Court found that the word-mark claim presented "a more nuanced question requiring assessment of the full marketplace context." Specifically, the Court identified several considerations that it believed warranted further development before the word mark could be enjoined: (a) the extent to which the word "MERIDIAN" has any descriptive connotation in the cleaning-products space; (b) the "house-mark" effect of the "Brindoval" brand name appearing on product packaging, in-store signage, and online product listings, which may provide some source-differentiating function; (c) the degree to which consumer confusion was driven by the trade-dress elements versus the word mark, a question that could not be fully answered by the current survey evidence; and (d) other marketplace factors better developed through discovery, including evidence of actual consumer purchasing behavior in the post-modification environment.
This bifurcation is strategically significant. On the positive side, it demonstrates that the Court takes the overall infringement claim seriously and has found likely confusion as to the most visually prominent infringing elements. On the other hand, it suggests that Judge Albright may require a more granular evidentiary showing to enjoin the word mark — which underscores the importance of developing supplemental survey evidence isolating word-mark confusion after Brindoval modifies its trade dress.
B. The Court's Findings on Irreparable Harm
The Court's analysis of irreparable harm tracked its bifurcated treatment of the trade-dress and word-mark claims.
As to the trade-dress elements, the Court found that irreparable harm was established under the Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), framework. The Second Circuit has held that while irreparable harm is not automatically presumed in all trademark cases following the Supreme Court's decision in Northgate Group v. MercExchange, L.L.C., 547 U.S. 388 (2006), a strong showing of likelihood of confusion from near-identical trade dress creates a strong inference of irreparable injury. The Court found that the "near-replica" nature of Brindoval's trade dress, combined with the survey evidence and consumer complaint evidence, established that MCB would suffer ongoing erosion of its brand identity, loss of control over the goodwill associated with its trade dress, and reputational harm that could not be adequately remedied by monetary damages alone. The Court noted that "trademark infringement by its nature causes injuries — including loss of brand exclusivity, dilution of source-identifying function, and erosion of consumer trust — that are difficult or impossible to quantify in dollar terms."
As to the word mark, the Court found MCB's showing of irreparable harm to be "weaker standing alone." The Court acknowledged that Rachel Dominguez's declaration documented several instances of actual consumer confusion — including customer service complaints from consumers who purchased MERIDIAN FRESH products believing them to be MCB products, and social media posts reflecting consumer confusion — but noted that these incidents were "limited to a relatively small number" (the declaration identified approximately eighteen documented confusion incidents over the July–November 2022 period) and that the record would "benefit from supplementation through discovery" to develop a more comprehensive picture of the scope and frequency of consumer confusion in the marketplace.
Importantly, the Court also observed that "some portion" of the 31.4% net confusion rate demonstrated in the Furman survey "may be driven by the trade-dress similarities — the teal-and-white color scheme and the wave device — rather than the word mark in isolation." The Court reasoned that once Brindoval modifies its trade dress pursuant to the injunction, the residual level of consumer confusion attributable solely to the word mark "MERIDIAN FRESH" is "uncertain" and may be materially lower than the 31.4% rate reflected in the current survey, which tested confusion using the original (trade-dress-infringing) packaging. The Court found that this uncertainty counseled against the issuance of a preliminary injunction as to the word mark, noting that the evidence could be supplemented through discovery and that MCB retained the ability to seek additional relief at trial or through a renewed motion supported by additional evidence.
C. The Court's Findings on Balance of Hardships
The Court's balance-of-hardships analysis also reflected the bifurcated approach.
With respect to the trade-dress modification, the Court found that the balance of hardships favored MCB. The Court reasoned that requiring Brindoval to redesign its packaging — by removing the wave device and changing the teal-and-white color scheme — would impose costs on Brindoval but would not require Brindoval to discontinue its product line or withdraw products from the marketplace entirely. The Court noted that packaging redesigns are a routine aspect of the consumer-products business and that Brindoval, as a major retailer with substantial resources and a professional design and marketing infrastructure, was well-equipped to accomplish a packaging change within the forty-five-day compliance period. The Court also observed that any hardship to Brindoval was largely self-imposed, given the company's failure to conduct a comprehensive clearance search before adopting packaging that closely resembled MCB's registered trade dress.
As to enjoining the word mark, however, the Court found "more significant hardship to Brindoval." The Court noted that Brindoval had already invested in brand development for the MERIDIAN FRESH line, including marketing campaigns, retail shelf placements, and consumer loyalty-building efforts, and had generated $6.8 million in gross revenue during the product line's first five months on the market. Forcing Brindoval to adopt an entirely new brand name at the preliminary-injunction stage — before a full adjudication on the merits — could cause "disproportionate harm" to Brindoval relative to the "remaining uncertainty" regarding the strength of the word-mark confusion claim standing alone. The Court emphasized that preliminary injunctions are "extraordinary remedies" that should be "narrowly tailored to address the demonstrated harm" and that the trade-dress injunction adequately addressed the most clearly established source of confusion while preserving the word-mark question for full adjudication.
D. The Court's Findings on Public Interest
The Court's public-interest analysis was relatively brief. The Court acknowledged that the public has a strong interest in preventing consumer confusion in the marketplace, which favors MCB's position, but also noted the public interest in market competition, consumer access to affordable products, and the principle that courts should not issue "overly broad preliminary injunctions that remove products from the marketplace before a full adjudication on the merits." The Court found that the trade-dress injunction appropriately served the public interest by eliminating the most confusing elements of Brindoval's packaging while preserving Brindoval's ability to compete in the marketplace under a modified presentation. The Court did not find the public-interest factor dispositive in either direction as to the word mark.
E. Specific Terms of the Order
The operative terms of the PI Order require Brindoval to take the following actions:
(a) Cease use of the stylized wave device on all MERIDIAN FRESH packaging, marketing materials, in-store displays, point-of-sale materials, and digital marketing assets, including but not limited to the Brindoval website and social media channels;
(b) Cease use of the teal-and-white color scheme on MERIDIAN FRESH packaging and associated materials that, in the Court's view, mimics MCB's established trade dress for the MERIDIAN cleaning product line; and
(c) Complete both modifications within forty-five (45) days of the date of the Order (i.e., by approximately February 23, 2023).
The Court expressly stated that Brindoval is not enjoined from using the word mark "MERIDIAN FRESH" pending trial.
The Order also addressed the bond requirement under Federal Rule of Civil Procedure 65(c). The Court indicated that a security bond would be required but stated that the specific amount would be determined following submissions from both parties. The Court directed the parties to submit proposed bond amounts within fourteen days of the Order (i.e., by approximately January 23, 2023). We anticipate Brindoval will seek a substantial bond amount reflecting its claimed costs of packaging redesign and potential lost sales during the transition period, and we should be prepared to argue for a more modest bond reflecting the narrowly tailored scope of the injunction.
Finally, and significantly for MCB's long-term litigation strategy, the Order stated that it was "without prejudice to MCB's ability to seek additional injunctive relief at trial or upon a further showing of confusion arising from the word mark after trade-dress modification." This language is critically important because it preserves MCB's ability to seek a broader injunction — including an injunction of the word mark — either at trial or through a renewed preliminary injunction motion supported by post-modification confusion evidence. This reservation provides the strategic foundation for several of the recommendations set forth below.
IV. Implications for Trial Strategy
A. Strengths of Our Position Going Forward
The PI Order significantly strengthens MCB's position heading into discovery and trial. Several key advantages merit emphasis.
First, the partial grant constitutes a significant judicial endorsement of MCB's trademark rights and the overall infringement theory. The Court's Polaroid analysis found that the majority of factors weigh heavily in MCB's favor — strength of the mark, similarity of the marks, proximity of products, bridging the gap, actual confusion (as evidenced by the survey), the absence of a clearance search (bearing on good faith), and consumer sophistication. The Court's overall assessment that these factors "strongly favor a finding of likelihood of confusion" provides a powerful foundation for MCB's case at trial. While preliminary injunction findings are not formally binding at trial, they are practically influential and reflect the considered judgment of the trial court on the merits as developed to date.
Second, the Court's crediting of Dr. Furman's consumer confusion survey — finding the 31.4% net confusion rate "probative of likely confusion" — validates our survey methodology and provides significant evidentiary support for the infringement claim. A net confusion rate of 31.4% is well above the thresholds that the Second Circuit and district courts within the Circuit have consistently found sufficient to support a finding of likelihood of confusion. This survey evidence will be a centerpiece of the trial presentation, and its partial endorsement by the Court strengthens its likely impact on the finder of fact.
Third, the Court's finding regarding Brindoval's failure to conduct a comprehensive trademark clearance search before adopting the MERIDIAN FRESH mark is a factual observation that can be significantly exploited at trial on the good-faith / intent factor. The absence of a clearance search by a sophisticated $2.1 billion retailer with in-house legal counsel is probative of, at a minimum, willful blindness to MCB's established trademark rights. Through discovery, we intend to develop the record on this point further — including any internal communications reflecting awareness of MCB's MERIDIAN marks, any decision-making regarding whether to conduct a clearance search, and any advice received from trademark counsel or outside branding consultants. If we can establish that Brindoval was actually aware of MCB's marks before adoption, or that Brindoval deliberately chose not to conduct a clearance search, the good-faith factor could shift from merely "troubling" (as the Court characterized it at the PI stage) to affirmative evidence of bad faith, which would substantially strengthen MCB's case and could support enhanced remedies including an award of Brindoval's profits under 15 U.S.C. § 1117(a).
Fourth, the Court's trade-dress ruling creates a natural opportunity for a post-modification consumer confusion survey. Once Brindoval implements the required packaging changes — removing the wave device and altering the teal-and-white color scheme — a supplemental survey testing consumer confusion from the modified packaging would isolate the confusion attributable solely to the word mark "MERIDIAN FRESH." If the supplemental survey demonstrates that confusion persists at a significant level even without the confusingly similar trade dress, this would directly address the Court's expressed uncertainty about residual word-mark confusion and provide a strong basis for a renewed motion for additional injunctive relief or for a favorable ruling on the word-mark claim at trial.
B. Weaknesses and Risks
Notwithstanding the significant strengths of MCB's position, the PI Order also reveals certain vulnerabilities and risks that must be carefully managed.
First, the Court's refusal to enjoin the word mark signals that Judge Albright views the word-mark claim as presenting closer questions than the trade-dress claim. While the Court did not reject the word-mark infringement theory, its expressed reservations — particularly regarding the potential descriptive connotations of "MERIDIAN" in the cleaning-products context and the house-mark effect of the Brindoval brand name on product packaging — indicate areas where Brindoval's defenses may gain traction. We should be prepared for Brindoval to argue at trial that "MERIDIAN" is descriptive or at most weakly suggestive when used in connection with cleaning products, and that the addition of "FRESH" creates a commercially distinct overall impression. While we believe this argument is weak in light of the mark's incontestable status and the Court's finding of strong secondary meaning, it is clearly an argument that the Court found sufficiently colorable to warrant further development.
Second, Brindoval will inevitably argue at trial that the post-modification confusion rate has decreased — that once the confusingly similar trade dress is removed, consumers are no longer confused by the MERIDIAN FRESH word mark standing alone. This argument could potentially undermine the weight of Dr. Furman's pre-modification survey, which tested confusion using the original packaging that included both the trade-dress elements and the word mark. Brindoval's argument would be that the pre-modification survey overstates word-mark confusion because it captures the combined effect of the trade dress and the word mark, and that the more relevant data point is the post-modification confusion rate. This is precisely why a supplemental post-modification survey is strategically essential — it allows us to preempt this argument by affirmatively demonstrating that confusion persists even after the trade dress has been modified.
Third, the methodological critiques raised by Brindoval's rebuttal expert, Dr. Ronald Trask of Pinnacle Research Group Inc., remain a significant litigation risk. The Court expressly reserved these critiques for "fuller examination at trial," which means Brindoval has preserved its right to challenge the Furman survey through a Daubert motion or through aggressive cross-examination at trial. Dr. Trask's specific critiques — including objections to respondent screening criteria, stimulus presentation, and control design — must be carefully analyzed and addressed. We should prepare Dr. Furman for rigorous cross-examination on these issues and consider whether any supplemental analysis or methodology documentation should be prepared to bolster the survey's reliability. If a Daubert motion is filed, we will need to respond comprehensively with supporting authority and expert submissions.
Fourth, Brindoval's counterclaim for declaratory judgment of non-infringement remains pending and provides a platform for Brindoval to affirmatively challenge the scope and strength of MCB's marks. While counterclaims of this type are often defensive in nature, they give Brindoval an opportunity to develop evidence and arguments regarding the alleged weakness or descriptiveness of the MERIDIAN mark, third-party use of similar marks in the marketplace, and other defenses that could complicate the infringement analysis. We should monitor Brindoval's counterclaim strategy closely and ensure that MCB's discovery efforts are designed to develop evidence responsive to these anticipated arguments.
C. Recommended discovery Priorities
In light of the PI Order and the Court's expressed areas of uncertainty, we recommend the following discovery priorities:
Mark-Adoption Process and Intent. Targeted discovery into Brindoval's mark-adoption process should be the highest priority. The interrogatories and document requests already prepared for service (First Set of Interrogatories Nos. 1–25 and First Set of Requests for Production Nos. 1–30, targeted for service on January 30, 2023) include specific requests directed at the decision-making process that led to the selection and adoption of the MERIDIAN FRESH mark and associated trade dress. These requests should be pressed to the response deadline and followed up aggressively in the event of objections or incomplete responses. The focus of this discovery should be on Nathan Cho's role in the private-label development process, including any internal communications, presentations, or memoranda reflecting the mark-selection process; any awareness of MCB's MERIDIAN marks among Brindoval personnel before or during the adoption process; any consultation with trademark counsel, outside branding agencies, or search firms; and any deliberate decision not to conduct a comprehensive clearance search. If this discovery reveals evidence of actual knowledge or willful blindness, it will substantially strengthen the infringement claim and support enhanced remedies.
Sales and Financial Data. We should pursue Brindoval's sales and financial data for the MERIDIAN FRESH line on an ongoing basis, including post-PI Order data. This information is relevant to several purposes: (a) calculating damages and unjust enrichment; (b) assessing the ongoing market impact of the infringing mark; (c) determining the effectiveness of the trade-dress modification in reducing confusion; and (d) informing settlement valuation. We recommend seeking monthly or quarterly sales reports, revenue data, profit margins, marketing expenditures, and customer acquisition metrics for the MERIDIAN FRESH line.
Supplemental Consumer Confusion Survey. As discussed above, we strongly recommend retaining Dr. Elaine Furman of Lakeshore Brand Consulting to design and conduct a supplemental consumer confusion survey using Brindoval's modified (post-PI) packaging. This survey should be designed to isolate word-mark confusion by presenting respondents with Brindoval's modified packaging — which will no longer include the wave device or teal-and-white color scheme — alongside MCB's MERIDIAN packaging. The survey should employ the same general Squirt-design / modified Eveready protocol used in the original survey, with any methodological refinements that Dr. Furman believes are warranted to address the Trask critiques. The timing of this survey will depend on when Brindoval implements its packaging modifications, but we should begin planning discussions with Dr. Furman immediately so that the survey can be deployed as soon as the modified packaging is available in the marketplace. A supplemental survey demonstrating persistent confusion at a significant level (even at a lower rate than the pre-modification survey) would be powerful evidence and would directly rebut Brindoval's anticipated argument that confusion has dissipated.
Key Depositions. We recommend deposing the following individuals at Brindoval:
• Douglas P. Lindstrom, Chief Executive Officer — to establish corporate-level knowledge and oversight of the private-label development process, including any involvement in or awareness of the MERIDIAN FRESH launch and subsequent trademark dispute;
• Karen A. Whitfield, General Counsel — to explore the legal department's role (or lack thereof) in the mark-adoption and clearance process, any legal advice provided regarding the MERIDIAN FRESH mark, and Brindoval's response to MCB's cease-and-desist letter;
• Nathan Cho, Vice President, Private Label Development — to probe the mark-selection process in detail, including Cho's testimony at the PI hearing regarding independent selection, any awareness of MCB's marks, and the design process for the MERIDIAN FRESH trade dress; and
• Any outside branding consultant or trademark counsel who may have been consulted prior to the MERIDIAN FRESH launch — to establish whether a clearance search was conducted, what results were reported, and whether any advice was given regarding the risk of confusion with MCB's marks.
These depositions will be critical to developing the factual record on the good-faith / intent factor and to undermining Brindoval's claimed independent adoption defense.
V. Assessment of Potential Interlocutory Appeal
A. Standard for Interlocutory Appeal of PI Denial (Word Mark)
Under 28 U.S.C. § 1292(a)(1), orders "granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions" are immediately appealable to the Court of Appeals as of right. This statute provides an exception to the general final-judgment rule of 28 U.S.C. § 1291 and reflects the recognized principle that interlocutory injunctive orders can cause immediate and significant consequences to the affected parties. Because the PI Order includes a partial denial — the Court's refusal to enjoin the MERIDIAN FRESH word mark — MCB has the right to pursue an immediate appeal of that partial denial to the United States Court of Appeals for the Second Circuit.
The standard of review on appeal would be abuse of discretion for the overall preliminary injunction decision, with underlying factual findings reviewed for clear error and legal conclusions (including the application of the Polaroid factors) reviewed de novo. This standard gives the appellate court meaningful latitude to defer to the trial court's exercise of discretion, particularly on fact-intensive questions such as the balance of hardships and the weight to be accorded survey evidence.
B. Arguments for Appeal
Several arguments could be advanced in support of an interlocutory appeal of the partial denial.
First, the Court's bifurcation of the trade-dress and word-mark claims arguably underweights the cumulative likelihood of confusion from the totality of Brindoval's infringing conduct. The Polaroid analysis is designed to assess likelihood of confusion holistically, considering all relevant factors in combination. By disaggregating the trade-dress elements from the word mark and requiring a separate showing of confusion from the word mark "standing alone," the Court may have applied a more demanding standard than the Second Circuit's precedent requires. The proper inquiry is whether Brindoval's overall use of the MERIDIAN FRESH mark and associated trade dress creates a likelihood of confusion — not whether each individual element would independently cause confusion in isolation.
Second, the 31.4% net confusion rate from Dr. Furman's survey far exceeds the threshold that courts in the Second Circuit have consistently found sufficient to establish likelihood of confusion. Net confusion rates of 15–20% have been routinely found probative, and rates above 25% are generally considered strong evidence. A rate of 31.4% is well within the range that should support injunctive relief as a matter of law, and the Court's decision to credit the survey as "probative" while declining to act on it with respect to the word mark reflects an internal inconsistency that the Second Circuit could correct.
Third, the Court's speculation that confusion may dissipate after the trade-dress modification is not supported by the evidentiary record. The Court's observation that "some portion" of the surveyed confusion "may be driven by the trade-dress similarities rather than the word mark in isolation" is a hypothesis, not a finding based on evidence. The Furman survey was not designed to decompose confusion into trade-dress-attributable and word-mark-attributable components, and the Court had no evidentiary basis for concluding that a significant portion of the confusion would dissipate after the trade-dress changes. Speculation about future confusion levels is not an appropriate basis for denying injunctive relief where the current evidence strongly supports a finding of likely confusion.
C. Arguments Against Appeal (Risks)
Notwithstanding the foregoing arguments, there are significant practical and strategic risks associated with an interlocutory appeal that, in our assessment, outweigh the potential benefits.
First, the partial grant is a favorable outcome overall, and an appeal risks drawing negative attention to a ruling that is largely beneficial to MCB. Appellate courts reviewing partial grants of preliminary injunctions may examine the entire ruling, including the portion favorable to the appellant, and an unsuccessful appeal could result in unfavorable appellate dicta or, in a worst-case scenario, a modification or reversal of the trade-dress injunction. While the risk of reversal is low given the Court's thorough analysis and the strong evidentiary record, it is a risk that must be weighed against the uncertain benefits of appeal.
Second, the Second Circuit is likely to defer to Judge Albright's factual assessment and exercise of discretion under the abuse-of-discretion standard. The Court's analysis was careful, detailed, and grounded in the evidence. The partial denial was not based on a legal error but on a factual judgment that the word-mark confusion claim, standing alone, was sufficiently uncertain to warrant further development before the extraordinary remedy of a preliminary injunction could be justified. This type of discretionary, fact-intensive determination is precisely the kind of ruling that appellate courts are most reluctant to disturb.
Third, an interlocutory appeal could introduce significant delay into the case. Appellate briefing, oral argument scheduling, and opinion drafting could easily consume six to twelve months or more. During this period, Brindoval would continue to operate under the MERIDIAN FRESH mark (with modified trade dress), building additional marketplace presence and consumer recognition for the MERIDIAN FRESH name. This continued use could complicate MCB's infringement claim in several ways: it could give rise to arguments about marketplace coexistence, consumer awareness of the two distinct marks, and progressive weakening of the confusion claim over time. Additionally, the longer Brindoval operates under the mark, the stronger its potential laches defense becomes, even though laches typically does not bar claims for prospective injunctive relief.
Fourth, appellate briefing and argument would add significant cost and attorney time to the matter. Based on our assessment, appellate briefing, preparation, and argument would require approximately 200–300 additional attorney hours and associated costs of approximately $150,000–$250,000, depending on the complexity of the appellate record and the scope of the Second Circuit's review. These resources could be more productively directed toward discovery, the supplemental survey, deposition preparation, and trial preparation.
D. Recommendation
Based on the foregoing analysis, we recommend against pursuing an interlocutory appeal at this time. The partial grant provides meaningful relief — eliminating the most egregious trade-dress infringement — and substantial litigation leverage. The better strategic approach, in our judgment, is to use the favorable trade-dress ruling as a foundation, develop the word-mark confusion case through targeted discovery and a supplemental post-modification survey, and revisit the question of additional injunctive relief closer to trial, either through a renewed motion for preliminary injunction supported by new evidence or through the trial itself. An appeal at this stage carries risks that are disproportionate to the potential benefits and could divert resources from the core litigation strategy.
We remain available to revisit this recommendation if circumstances change — for example, if the discovery process reveals particularly strong evidence of bad faith or if the supplemental survey demonstrates very high residual word-mark confusion that would warrant an urgent request for additional injunctive relief.
VI. Settlement Leverage and Implications
A. Enhanced Leverage from PI Order
The PI Order materially enhances MCB's settlement leverage. The partial grant demonstrates that the Court takes MCB's infringement claims seriously and that Brindoval's overall infringing conduct — particularly the trade-dress elements — crosses the line of actionable trademark infringement. This judicial finding sends a clear signal to Brindoval and its counsel that the litigation presents genuine and significant risk for the defendant.
Brindoval now faces a multi-dimensional set of costs and pressures. First, it must absorb the immediate operational burden of redesigning MERIDIAN FRESH packaging across its entire product line and distribution network within forty-five days. This includes modifying packaging for multiple product SKUs, updating printed marketing materials and in-store displays, revising digital assets on Brindoval's website and social media channels, coordinating with contract manufacturers and packaging suppliers, and managing the logistics of transitioning inventory across 148 retail locations. For a product line that generated $6.8 million in revenue over five months, the cost of a complete packaging overhaul — including design, manufacturing, distribution, and destruction or reconfiguration of existing inventory — could be substantial.
Second, Brindoval faces the prospect of continued litigation with the real possibility of a more comprehensive injunction at trial. The Court's express reservation that MCB may seek additional injunctive relief — either at trial or upon a further showing of confusion from the word mark after trade-dress modification — means that Brindoval cannot treat the partial denial as a final resolution of the word-mark claim. The threat of a broader injunction requiring a complete rebrand from MERIDIAN FRESH to an entirely new name hangs over Brindoval's business planning and creates ongoing uncertainty.
Third, the litigation itself imposes significant costs on Brindoval, including legal fees for Halverson McKay & Pruitt LLP, management distraction, and the reputational risk of an adverse trial outcome. As the case proceeds through discovery toward trial, these costs will escalate.
B. Potential Settlement Framework
The PI Order creates a natural inflection point for settlement discussions. Brindoval's leadership and counsel are likely reassessing their risk exposure in light of the Court's ruling, and this moment of strategic reassessment presents an opportunity for MCB to initiate or engage in productive negotiations.
Possible settlement structures could include the following:
(a) Complete Cessation of the MERIDIAN FRESH Mark. This is MCB's preferred outcome and the structure that provides the most complete brand protection. Under this structure, Brindoval would agree to permanently discontinue all use of the MERIDIAN FRESH mark and any confusingly similar mark in connection with cleaning products, withdraw its pending trademark application (Serial No. 97/412,558), and consent to judgment on the infringement claims. In exchange, MCB might agree to a negotiated phase-out period, limited transitional use provisions, and a monetary payment or waiver of damages.
(b) Coexistence Agreement with Mark Modification. Under this structure, Brindoval would agree to modify the MERIDIAN FRESH mark to incorporate distinguishing elements that reduce the likelihood of confusion — for example, by adding "BRINDOVAL" as a prefix (e.g., "BRINDOVAL'S MERIDIAN FRESH") or by adopting other distinguishing branding elements. The coexistence agreement would include negotiated restrictions on channels of trade, geographic markets, product categories, and marketing practices, as well as a monetary payment to MCB reflecting both past damages and the ongoing right to use a modified version of the mark.
(c) Licensing Arrangement. Under this structure, Brindoval would obtain a formal trademark license from MCB to use the MERIDIAN FRESH mark (or a modified version) subject to MCB's quality-control oversight and ongoing royalty payments. This structure would preserve MCB's trademark rights, provide a revenue stream, and give MCB contractual control over the quality and presentation of products sold under the mark. However, this structure carries risks, including the potential for consumer confusion if consumers perceive the licensed products as MCB products, and the administrative burden of quality-control compliance.
We note that the Court has scheduled initial disclosures for January 23, 2023, and the case is progressing on the standard litigation track. It is possible that the Court may order mediation at a subsequent case management conference, which would provide a structured forum for settlement discussions. We should be prepared for this eventuality and should develop a comprehensive mediation strategy in advance.
C. Recommendation
We recommend that MCB and Calderwood & Harkness use the momentum from the PI Order to explore settlement discussions with Brindoval and Halverson McKay & Pruitt LLP in parallel with continuing to prepare for trial. The two tracks are complementary: vigorous litigation preparation strengthens MCB's leverage at the negotiating table, while productive settlement discussions may avoid the costs and uncertainties of trial.
If court-ordered mediation is scheduled, MCB should enter mediation from a position of strength, armed with the PI Order, the survey evidence, and the strong judicial findings on the Polaroid factors. MCB's mediation presentation should emphasize (a) the Court's finding of likely confusion from the trade dress and the s

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

MEMORANDUM

MATTER NO.: 1011-00003

BILLING CODE: 11470-001

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