from the c-is-for-court-costs dept
You learn quite a bit writing for this site. For instance, did you know that Milano cookies aren't a style of cookie, but are rather an actual trademarked name of a dessert from Pepperidge Farm? I didn't. Yes, the two biscuit cookies with a layer of chocolate in between, which most of us ignorant fools just call a cookie sandwich, is jealously protected by Pepperidge Farm. Case in point is the company's lawsuit against Trader Joe's for selling what it claims is an infringing cookie.
Pepperidge Farm is calling out Trader Joe’s for allegedly being some kind of cookie monster, claiming in a new lawsuit that the grocery company is infringing on its trademark for selling a cookie that it says is a ripoff of its Milano cookie. By selling a product called Crispy Cookies, Trader Joe’s is damaging Pepperidge Farm’s goodwill and confusing shoppers, according to the lawsuit reported by Reuters. Though Trader Joe’s cookie is more rectangular, it has rounded edges, “mimicking an overall oval shape,” the lawsuit says. The grocery chain also uses similar packaging, the complaint claims.Yeah, about that packaging. The claim that they're similar? Yeah, that's not actually true.
The differences in trade dress abound, from the colors to the specific shapes of the packaging, not to mention that clearly labeled Trader Joe's logo on its product. Claims that the packaging was designed to look like Pepperidge Farm packaging are clearly not true. As for the trademark claim on the cookie itself? Look, when it comes to the trademark protections of food items, these things are really specific. Recall that in the EU there was an attempt to trademark Kit Kat's shape, which was specific enough to require four bars with the exact shape that Kit Kats are sold in...and even that was recommended to be rejected by the EU. In this case, the shapes of the cookies are different, the types of filling are slightly different, and the actual type of cookies used in each are different (the Milano is a vanilla wafer cookie, and the Trader Joe's product is just a plain old cookie). So, different ingredients and different shapes. Where is the trademark violation?
It's worth noting as well that Milanos first appeared as a cookie in the 1950s, yet Pepperidge Farm only got the trademark on the cookie in 2010, which seems to undercut the theory that its only with this trademark that it could survive in the first place. It seems unlikely that anyone is going to Trader Joe's and thinking they're buying something from Pepperidge Farm. Given the weakness in the other areas of the claim, I'd expect this suit to meet a quick end.