Pepperidge Farms sued Trader Joe’s in Connecticut Federal Court, claiming Trader Joe’s Crispy Cookies infringes Pepperidge Farms’ trademarks in its Milano cookies, i.e. the configuration of the Milano cookie [chocolate filling sandwiched between two oval shaped cookies] and packaging Milano cookies within fluted vertical paper trays inside a larger, upright package.
Trader Joe’s sells private brand Crispy Cookies, which have a chocolate filling sandwiched between two rounded rectangular cookies. Crispy Cookies are packaged within a fluted plastic horizontal tray.
A comparison of how the two cookies are packaged can be found in this delish.com article.
A trademark owner can sue for trademark infringement if the alleged infringing party is using a mark in a way that creates a likelihood of confusion about the source of the alleged infringer’s product. To determine whether there is a likelihood of confusion, courts will look at the strength of the trademark; the similarity of the trademarks; the similarity of the goods at issue; whether there is evidence consumers were actually confused; and the alleged infringer’s intent in using the marks.
Trader Joe’s is well-known for primarily selling private-brand products and it would seem most Trader Joe’s shoppers know they are buying Trader Joe’s products instead of Pepperidge Farms products. However, the delish.com article notes that taken out of the packaging, it is possible to think Crispy Cookies are Milano cookies.
For more on this case, see this Reuters article.
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