Special report: Milanos versus Crispy Cookies--the jury verdict

Editor's note: You may have heard last week that Pepperidge Farm is suing Trader Joe's for trademark infringement. See here and here for details. 

Using our exclusive time machine, we here at Exploring Trader Joe's have traveled to the future to obtain a copy of the verdict form from the ensuing trial, with questions written by the judge and answered by the jury. We present it here in the public interest. 


Does the defendant's product name duplicate that of the plaintiff's product? 

No. They are not even both called "cookies." The only word in common is chocolate. We find that the word chocolate is not covered by the plaintiff's trademark.


Does the defendant's packaging duplicate that of the plaintiff's product? 

No. They are both sold in bags. So what? The bags are not made of the same material, and are only approximately of the same size. No reasonable consumer could mistake one for the other.


Is the defendant's use of a photograph of a fluted paper cup on its product's packaging meant to suggest "Pepperidge Farm cookies" to the average consumer? 

Yes, without question. We base this conclusion on (1) the fact that the Trader Joe's cookies are not even packaged with such a paper cup, so there can be no other purpose to showing one on the package, and (2) everybody knows that Pepperidge Farm's Milanos and other cookies are so packaged. Therefore, the Trader Joe's photograph, labeled as a "serving suggestion," means that Trader Joe's is telling its customers, in effect, "Buy our cookies. Then buy some Milanos. Throw away the Milanos, put the Crispy Cookies in the Milanos paper cup, and serve them that way."


Do the defendant's cookies physically resemble those made the plaintiff? 

No--or, more precisely, only in the broadest possible terms. They are both pale-colored cookies, longer in one dimension than the other, sandwiching a layer of chocolate. But that's about it. The plaintiff's claim that the defendant's product is "mimicking an overall oval shape" is absolutely refuted by the photographic evidence submitted by the defendant:

We the jury respectfully suggest that counsel for the plaintiff review a grade-school math textbook and re-acquaint themselves with the definitions of "oval" and "rectangle."

As the picture shows, the two products are also distinguished by differences in color, with the Milano being both more uniform and more yellow, while the Crispy Cookie is closer to white, with distinctly browned edges.

Furthermore, we note that even in profile the two products are readily distinguishable, as shown by the photograph we ourselves took during jury deliberations:

The chocolate layer in the defendant's product is so much thicker that anybody could tell them apart at a glance, from any angle of viewing.


Does the defendant's product duplicate the taste and texture of the plaintiff's product? 

Again, only vaguely. The Milano is more of a traditional shortbread, more floury than sweet, while the opposite is true of the Crispy Cookie. The latter is crunchy; the former more powdery and delicate. But what most readily separates them is the prominence of the chocolate. In the Trader Joe's cookie, it is thicker, richer, creamier, and generally more pronounced than in the Pepperidge Farm cookie. In other words, the chocolate is the selling point for TJ's; the cookie is the selling point for the PF.

We note, incidentally, that exactly one-half of the jurors expressed an overall preference for the defendant's product, and one-half for the plaintiff's. The difference split cleanly between those with a stronger versus weaker general liking for chocolate and sweetness, which are both more prominent in the Trader Joe's product. We conclude that this variety in preference proves that the two products are indeed substantially different, despite some superficial similarities.

With the indulgence of the court, the half of the jury that prefers the Trader Joe's product would like to put into the record a small gloat, by noting that the TJ's product is only $2.79 for 7.5 ounces of cookies, while the Pepperidge Farm product is $3.69 (according to the evidence presented at trial) for a measly 6 ounces of cookies. This half of the jury adds, respectfully, neener neener neener.


Did the defendant intentionally attempt to imitate the plaintiff's product? 

No, not as that question is worded. We believe that the defendant did, in fact, note the commercial success of the plaintiff's product, and set about to come up with one that would be comparable, but not identical; one that would appeal to consumers who had already found that they liked Milanos. However, in creating its cookie, Trader Joe's introduced sufficient elements of distinction in the name, packaging, appearance, texture, and taste to make it a substantially different product overall. No reasonable consumer could mistake one for the other, after having been exposed to both.


What is your final verdict? 

We unanimously find for the defendant.