It’s the battle of the disk-shaped, crustless, peanut butter-and-jelly sandwiches.
J.M. Smucker, the maker of Uncrustables, is suing Trader Joe’s, accusing the grocery store chain of infringing on its trademarks by selling a copycat version of its popular snack.
The Un-what now?
You’ve heard of peanut butter and jelly, but what you may not know, unless you routinely pack school lunchboxes, is that the breakfast food behemoth Smucker’s has sold frozen PB&J sandwiches since the mid-1990s under the name Uncrustables.
Pillowy pucks of crustless white bread filled with peanut butter and various flavors of jelly, they are a staple among schoolchildren, though others eat them, too. The N.F.L., collectively, consumes an estimated 80,000 of them each season. California firefighters wolf them down, too. (They may baffle those who don’t live in the United States or Canada.)
Smucker’s, also known for making jams, jellies and Jif peanut butter, has spent over a billion dollars developing Uncrustables and the “goodwill” associated with them, the company said in a lawsuit filed this week against Trader Joe’s.
The suit, filed in U.S. District Court for the Northern District of Ohio, accuses the grocery store chain’s new Crustless Peanut Butter & Strawberry Jam Sandwiches of being an “obvious copycat” of the Uncrustables, violating Smucker’s trademarks and attempting to “trade off of Smucker’s valuable goodwill.”
Trader Joe’s has not responded to the lawsuit, and it did not respond to a request for comment.
Hang on. Can you trademark a sandwich?
Well, no. You generally can’t trademark foods. Sandwich recipes, or certain combinations of sandwich ingredients, are also “quite plainly not a copyrightable work,” an appeals judge ruled in 2015 in a case involving a Puerto Rico man who had attempted to trademark his chicken sandwich.
But you can trademark the specific shape or configuration of a food product. In this case, Smucker’s says, it has trademarked “a round pie-like shape with distinct peripheral undulated crimping” — a design it says Trader Joe’s has copied.
Smucker’s also accused Trader Joe’s of infringing on its trademark image of “a round crustless sandwich with a bite taken out showing filling on the inside,” which the grocery store chain uses on its packaging.
“Smucker does not take issue with others in the marketplace selling prepackaged, frozen, thaw-and-eat crustless sandwiches. But it cannot allow others to use Smucker’s valuable intellectual property to make such sales,” the company said in its filing.
We need a side-by-side comparison.
Here you go.
The Washington Post did an in-depth analysis and found that the Trader Joe’s sandwich had “a slightly squared-off shape, but it could pass for a circle if you didn’t look too closely.” It also was only crimped on one side, while Uncrustables have a “distinct peripheral undulated crimping.”
And you’re saying Smucker’s spent over $1 billion to develop this?
Good question — that seems like a lot of money for PB&J. The company said in its filing that the money was spent on marketing and product development, though it did not respond to a request for clarification on the figure.
This is not the first time Smucker’s has gone to court in an attempt to enforce these trademarks. In 2022, it sent a cease-and-desist letter to a nascent Minneapolis business called Gallant Tiger which was making upscale, individually-sold crustless round sandwiches.
How could Trader Joe’s respond?
Trademark infringement cases usually come down to how likely it is that a consumer will be confused between the two products, said Lawrence Hadley, the chair of intellectual property law at Glaser Weil Fink Howard Avchen & Shapiro, a Los Angeles law firm. He said it was likely that Trader Joe’s will argue that its product is distinct.
“When you go into Trader Joe’s and you buy a product that has Trader Joe’s on the package, the argument that they’re going to make is that consumers are not confused,” he said. He drew a comparison to customers who walk into a Costco store and buy a product carrying its Kirkland private label brand that is similar to what another brand offers — but the customer knows what they are getting.
“People going to Trader Joe’s understand that when they buy a sandwich, even if it doesn’t have a crust and is shaped in a certain way and you can heat it up in a toaster oven, it’s not a Smucker’s,” Mr. Hadley said. “That’s going be the argument that they will make.”
Yan Zhuang is a Times reporter in Seoul who covers breaking news.
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