How The Cookies Crumble

This Foodie Friday we’re doing something a little different and putting on our intellectual property hats. I know – how is that food-related? Well, I came across a lawsuit last week that involves both things: food and IP.

English: Milano mint chocolate cookies by Pepp...

(Photo credit: Wikipedia)

If you’ve ever been to Trader Joe’s you’ve probably seen a number of products on the shelves or in the freezers that look vaguely like other products you’ve seen in supermarkets. There are goldfish shaped crackers that are not Goldfish (capital G), cream-filled chocolate cookies that aren’t Oreos, and oval-shaped cookies with a layer of chocolate that are not Milanos. It’s these last items that triggered the lawsuit.

Apparently Pepperidge Farm does not consider imitation to be the sincerest form of flattery. As Reuters reported:

In a complaint filed on Wednesday in the New Haven, Connecticut federal court, Pepperidge Farm said Trader Joe’s is damaging its goodwill and confusing shoppers through its sale of Trader Joe’s Crispy Cookies.

We can debate whether or not a consumer would confuse the similar shape and packaging with the original cookie, but I’d like us to think about something.  When you see a store brand or other generic product in a store, are you confused as to whether this is the name brand?  I’d venture most of us aren’t.  Generics generally are competing on price while offering relatively equal (they claim) quality.  The issue, then, is how unique is your product?  There are lots of phones running Android (yes, I’m aware most of them us a forked version, unique to the phone and carrier).  While there have been lawsuits (Apple suing Samsung, for example) about the various features of a phone, no one is confusing an iPhone with a Galaxy.  I know about laws on things such as trade dress (the package, for example), but can you protect a flavor?  A shape?  Generally, when I buy a store brand, I know I’m trading off something for the price savings.

Rather than worrying about consumers buying “fake” Milanos, maybe Pepperidge Farm needs to focus on educating consumers as to why their cookie is just better and worth a few pennies more.  As a society, I think we spend too much time looking for people to sue and not enough time making what we sell better.  Better products usually mean better sales and better market share.  That’s the way those cookies crumble in my book.  Yours?

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