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Cookie Lawsuit Settled: Trader Joe’s, Pepperidge Farm Milano Case Decided

By Andrew Galbreath
Published on: 14:17 PST, Mar 30, 2016

The feud between Trader Joe’s and Pepperidge Farm over chocolate-filled cookies has come to an end with the two sides agreeing to settle out of court, the Chicago Sun-Times reported on Wednesday.

Pepperidge Farm filed a lawsuit against Trader Joe’s in a federal court in Hartford in December of last year, claiming that the grocery chain’s Crispy Cookies, a sandwich-style cookie filled with Belgian chocolate, too closely resembled its own famous chocolate-filled Milano sandwich cookies.

Issues were raised about the style, shape, and package design of Trader Joe’s cookies, all of which the Norwalk, Connecticut-based Pepperidge Farm claimed were specifically designed to imitate its iconic Milano. Pepperidge Farm sued for trademark infringement, accusing Monrovia, California-based Trader Joe’s of mimicking the Milano to trick consumers.

The lawsuit sought damages of an undisclosed amount, recovery of lawyer’s fees, and a block on all future sales of the Trader Joe’s alleged Milano knockoffs.

“The acts of Trader Joe’s have been malicious and calculated to injure Pepperidge Farm,” the company said in the complaint quoted by Reuters.

Hartford Courant also reported a compiled list of some of the cookie giant’s complaints, many of which have to do with the Milano’s image and alleged lost revenue. The Milano cookie dates back to 1956.

“The configuration of Trader Joe’s cookie closely resembled the Milano cookie’s distinctive oval shape, which is ‘instantly recognizable,’ Pepperidge Farm said. The Milano has been a part of pop culture and on such TV shows as ‘Frasier,’ ‘Will and Grace’ and ‘Seinfeld,’ Pepperidge Farm said. Trader Joe’s product was ‘designed to trade on the Milano cookie’s goodwill and reputation,’ Pepperidge Farm said in its lawsuit. The supermarket ‘furthered its deception’ by marketing its product using packaging associated with the Milano cookie, Pepperidge Farm said.”

Pepperidge Farm also noted that Trader Joe’s cookies are shown on the package in a fluted paper tray, similar to how Milanos are packaged, even though the actual cookies are sold in a long plastic tray, separated by rows. The 24-page lawsuit, which included photos to illustrate its points, also mentioned that Trader Joe’s product was sold in a gable top bag.

An article in SF Weekly noted the similarities and the differences between the two brands of cookies with a food critic’s flair.

“Milanos have rounded edges, while T.J.’s version have a more rectangular shape. Milanos are also crispier, lighter, and have a thinner layer of chocolate than impostor version, which are notably harder — borderline-crunchy, even — and have a thicker layer of Belgian chocolate (as stated in their description). The Milano also stayed intact and crumbled less, while the Crispy Cookies have more bite, but crumble more easily. They taste more chocolate-y, given that they have far more pronounced layers of it (although I haven’t tried the double chocolate version of Milanos, which may be more similar). Bottom line: They’re both tasty and unoffending buttery chocolate sandwich cookies, but they’re not the same. “

Now, the two companies have reached a “mutually beneficial agreement,” Ira Levy, a New York lawyer representing Pepperidge Farm, said to the Times. Both parties have agreed to make no further comments about the dispute.

A federal judge dismissed the case on March 9 after Pepperidge Farm announced it was withdrawing its lawsuit.

One question remains unanswered though: will Trader Joe’s Crispy Cookies stay on the shelves, or are their days numbered? Unfortunately, neither party in the lawsuit has come forward to make a statement on their ultimate fate.

A spokeswoman for Trader Joe’s declined to comment on the exact terms of the settlement. “We don’t comment on litigation,” she told Consumerist.

Pepperidge Farm has also been asked for a statement, though no reply has been made public so far.

[Photo by Joe Raedle/Getty Images]

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