Copycat Cookie = Trademark Lawsuit Reply

Last month, Pepperidge Farm sued Trader Joe’s over copycat cookies. Screen Shot 2016-01-11 at 1.57.56 PMPepperidge Farm claims the copycat cookies look too similar to its popular Milano cookies (and feature a similar “fluted paper cup” on their packaging). See the photo to the right. Pepperidge Farm claims these similarities damage its goodwill, confuse consumers and infringe its registered trademark. Interestingly, the Milano cookie shape is a registered trademark [U.S. Registration No. 3,852,499].

A few interesting details:

  • Milano cookies are famous cookies that Pepperidge Farm started selling in 1956.
  • Pepperidge Farm is a successful company, makes lots of money selling Milano cookies and can afford this litigation. (Trader Joe’s can likely afford this too).
  • The packaging of Trader Joe’s cookie features a picture of its cookies displayed in fluted paper cups (which is how Milano cookies are sold); however, the interior packaging is actually a plastic tray.
  • The two cookies are not the exact same shape. Trader Joe’s cookies are more rectangular.

This last point may be difficult to overcome. The court may be Screen Shot 2016-01-11 at 1.46.06 PMreluctant to enforce a product design trademark for a sandwich cookie when the allegedly infringing cookie is not the same shape.  It will be interesting to follow this case and see what happens next.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: a copy of the Complaint filed in December at http://ia601509.us.archive.org/4/items/gov.uscourts.ctd.110383/gov.uscourts.ctd.110383.1.0.pdf; earlier posts on trademarks at https://iplegalfreebies.wordpress.com/category/t-r-a-d-e-m-a-r-k/; a Reuters news article on the lawsuit: Pepperidge Farm sues Trader Joe’s over Milano cookie at http://www.reuters.com/article/us-traderjoes-pepperidgefarm-lawsuit-idUSKBN0TN1X020151205; @iplegalfreebies and www.kasterlegal.com.

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