Pepperidge Farm thinks it owns the concept of oval, chocolate-filled cookies

When you go grocery shopping, you can often save money by buying cheaper, generic alternatives to popular name-brand foods. One name-brand manufacturer, the cookie company Pepperidge Farm, thinks that Trader Joe’s has taken this practice too far. It’s suing the grocery chain for selling “crispy cookies filled with Belgian chocolate,” which Pepperidge Farm claims is too similar to its own Milano cookies.

“The Infringing Product contains a chocolate filling sandwiched between two rounded rectangular cookies, mimicking an overall oval shape,” Pepperidge Farm complains in its lawsuit. Also, the TJ’s cookies come in a bag that’s somewhat similar to the Milano bag, and, like the Milano cookie package, it shows cookies resting on “fluted paper trays.”

Trader Joe’s says it doesn’t comment on pending litigation, but we can expect the company to fight this lawsuit. If it lost, it’d have to rethink other Trader Joe’s products like Joe’s O’s (generic Cheerios) and Joe Joe’s (generic Oreos).

It would be a big deal for the rest of the grocery business too. Target sells Market Pantry chocolate sandwich cookies. Walmart sells Twist and Shout chocolate sandwich cookies. Safeway makes Tuxedo’s chocolate sandwich cookies.

These generic products exist because trademark law doesn’t prohibit companies from copying each other’s food concepts. It simply requires that companies not mislead customers about what they’re really buying. It’s fine to make a chocolate sandwich cookie — you just can’t package it in a way that makes customers think they’re buying Oreos if they’re not.

Pepperidge Farm claims that Trader Joe’s cross the line with its “crispy cookies filled with Belgian chocolate,” arguing that the company’s actions are “malicious and calculated to injure Pepperidge Farm.” But that argument seems like a bit of a long shot. Pepperidge Farm owns the “Milano” name and the specific design of its packaging, but its lawsuit seems to go beyond that, essentially claiming that it owns the concept of putting a chocolate filling between two oval cookies and selling them in a tall bag.