trader joe's – Techdirt (original) (raw)

Trader Joe’s Joins List Of Companies Combatting Unions Via Trademark Bullying

from the more-like-traitor-joe's,-amirite? dept

Grocery chain Trader Joe’s is not a complete stranger to Techdirt’s pages, and not for good reasons. The company, in the past, has shown itself to be perfectly willing to abuse trademark law to stop anything it doesn’t like, such as a man reselling its goods across borders where the company has no stores (perfectly legal) or someone setting up a site selling parody goods that tangentially reference its branding (also legal). But now Trader Joe’s has joined a small club of companies that has tried to use trademark law to bully its own employee’s union.

There is no lawsuit yet, but there is the threat of one, as Trader Joe’s has warned the new union its employees organized, all because the union’s store sells merchandise for the union.

The California-based grocer recently sent a letter to the union’s president, store worker Jamie Edwards, arguing that Trader Joe’s United’s T-shirts, mugs and tote bags are “likely to cause consumer confusion” and “dilute” the company’s brand. The letter, dated June 27 and obtained by HuffPost, referred specifically to items that say “Trader Joe’s United” and show the union’s logo, a fist clenching a box cutter.

Trader Joe’s claims that the items infringe on its trademarks, design and “trade dress” — a legal term that basically refers to a product’s general look and feel. The company said that if the union didn’t stop selling the merch, it might seek an injunction and monetary damages, including “all profits” the union has made from the items’ sale.

Best of luck to the company. I don’t think there’s a good chance that these claims would be winners in an actual trademark infringement trial, given the First Amendment implications, never mind the simple merits of any claims for brand dilution or public confusion. The store sits on the union’s website and all of the merch content is clearly in reference to the union, rather than the store itself. Furthermore, the union’s legal team seems entirely unimpressed by the threat.

The union’s lawyers fired back a letter of their own, accusing the company of bullying workers and trying to muzzle them through the threat of litigation. They said it was “disappointing, but not surprising” that the company would “seek to weaponize” trademark law against employees.

“This latest threat to the Union is just another in your continuing attack against labor,” the union’s attorneys wrote.

I imagine the threat was the point, just to see if the company could bully the union into taking down the merch. After all, the context of this is that the merch that gets sold directly funds the union’s coffers. And Trader Joe’s certainly doesn’t want its workers to have a greater war chest and, therefore, more power. Notably, this has been part of a standing campaign by the company to engage in suspected union-busting efforts.

Trader Joe’s United has accused the company of violating labor law on several occasions during the organizing drive – claims Trader Joe’s has denied. The union recently filed an unfair labor practice charge over the firing of Stephen Andrade, a Massachusetts worker the union claims was targeted because of his union support.

In a different case, prosecutors at the National Labor Relations Board are pursuing a complaint against the company alleging that it illegally removed union literature from the break room at a store in Minneapolis.

This is all very stupid on the part of Trader Joe’s. Yes, on the merits of its trademark threat, but also because on the list of companies who’s clientele might be hostile to a big company engaging in anti-union fuckery, Trader Joe’s would certainly be high up on my list.

Filed Under: intimidation, likelihood of confusion, merchandise, trademark, trader joe's united, union
Companies: trader joe's

Trader Joe's Threatens Man Over Parody 'Traitor Joe' Political T-Shirt

from the parody-to-a-tee dept

The last time we found niche grocery chain Trader Joe’s playing intellectual property bully, it was over one enterprising Canadian man who drove across the border, bought a bunch of good stuff from Trader Joe’s, and then resold it at his Canadian store called “Pirate Joe’s”. While that whole setup is entertaining, Trader Joe’s sued for trademark infringement in the United States, which made zero sense. The store was in Canada, not the States, reselling purchased items is not trademark infringement, and Trader Joe’s was free to open up Canadian stores if it chose.

Fast forward to the present and Trader Joe’s is trying to stretch trademark law yet again, this time to go after one man’s website that is selling parody t-shirts with a picture of Joe Biden and the moniker “Traitor Joe”, all mocked up to look like the store logo. Trader Joe’s sent a threat letter to the man, Dan McCall, who was represented by friend of the site Paul Alan Levy.

I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe’s from a BigLaw attorney lawyer who, considering his claim to be a “seasoned intellectual property litigator,” really should have known better than to subject his client to the Streisand Effect.

You can see the image in question below.

I’ve included Levy’s response embedded below so that you can read it in full. Now, if McCall sounds at all familiar to you, it’s because he’s made a habit out of annoying large institutions by creating parody logos of their branding. Hillary Clinton, Bernie Sanders, the NSA, and DHS have all come calling for him at some point. This is part of the context of Levy’s note that competent counsel really should know better than to send this threat letter: McCall and Levy have been through this before and they’ll get through it again.

As to the merits of supposed trademark infringement, well, the response letter does a fairly thorough takedown of any such arguments. Levy starts off by pointing out to Trader Joe’s that literally nobody is going to think it endorsed or produced this t-shirt. In fact, the company’s own threat letter notes how this puts the company in a bad light, so why would it also think the public would think the shirt came from Trader Joe’s?

But the real trump card in all of this is that the t-shirt is protected speech as parody.

Trademark law aside, McCall’s use of the image to comment on the President of the United States, while playing on the name of a leading grocery store chain, is speech squarely protected by the First Amendment. Consequently, any application of trademark law to quash such uses would be highly suspect. Although McCall’s products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

There’s a bit more in there, including an odd copyright claim over some of the imagery and the fact that Trader Joe’s invoked the DMCA against McCall even though his company, Liberty Maniacs, is not an interactive website allowing user input, but that’s more icing on the cake type stuff. What is made clear in all of this is that Trader Joe’s has a legal team that is making quite spurious threats that would be highly likely to be defeated in court.

Filed Under: dan mccall, parody, paul levy, t-shirts, trademark, traitor joe's
Companies: trader joe's

from the c-is-for-court-costs dept

You learn quite a bit writing for this site. For instance, did you know that Milano cookies aren’t a style of cookie, but are rather an actual trademarked name of a dessert from Pepperidge Farm? I didn’t. Yes, the two biscuit cookies with a layer of chocolate in between, which most of us ignorant fools just call a cookie sandwich, is jealously protected by Pepperidge Farm. Case in point is the company’s lawsuit against Trader Joe’s for selling what it claims is an infringing cookie.

Pepperidge Farm is calling out Trader Joe’s for allegedly being some kind of cookie monster, claiming in a new lawsuit that the grocery company is infringing on its trademark for selling a cookie that it says is a ripoff of its Milano cookie. By selling a product called Crispy Cookies, Trader Joe’s is damaging Pepperidge Farm’s goodwill and confusing shoppers, according to the lawsuit reported by Reuters. Though Trader Joe’s cookie is more rectangular, it has rounded edges, “mimicking an overall oval shape,” the lawsuit says. The grocery chain also uses similar packaging, the complaint claims.

Yeah, about that packaging. The claim that they’re similar? Yeah, that’s not actually true.

The differences in trade dress abound, from the colors to the specific shapes of the packaging, not to mention that clearly labeled Trader Joe’s logo on its product. Claims that the packaging was designed to look like Pepperidge Farm packaging are clearly not true. As for the trademark claim on the cookie itself? Look, when it comes to the trademark protections of food items, these things are really specific. Recall that in the EU there was an attempt to trademark Kit Kat’s shape, which was specific enough to require four bars with the exact shape that Kit Kats are sold in…and even that was recommended to be rejected by the EU. In this case, the shapes of the cookies are different, the types of filling are slightly different, and the actual type of cookies used in each are different (the Milano is a vanilla wafer cookie, and the Trader Joe’s product is just a plain old cookie). So, different ingredients and different shapes. Where is the trademark violation?

It’s worth noting as well that Milanos first appeared as a cookie in the 1950s, yet Pepperidge Farm only got the trademark on the cookie in 2010, which seems to undercut the theory that its only with this trademark that it could survive in the first place. It seems unlikely that anyone is going to Trader Joe’s and thinking they’re buying something from Pepperidge Farm. Given the weakness in the other areas of the claim, I’d expect this suit to meet a quick end.

Filed Under: cookies, milano, trademark
Companies: pepperidge farm, trader joe's

DailyDirt: Getting Ahead Is Getting Harder

from the urls-we-dig-up dept

More and more stories about economic inequality appear to be written more frequently. There are all sorts of statistics about the 1% versus the other 99% and how much wealth the top 1% controls compared to the rest of the population. The numbers vary all over the world. Russia apparently has 110 individuals who control 35% of the country’s wealth, while worldwide, the top 1% controls 39% of the world’s wealth. If you’re not feeling rich now, check out a few of these links if you have the spare time.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: childcare providers, income gap, inequality, middle class, overtime pay, poor, poverty, productivity, rich, savings, wages, wealth
Companies: costco, quiktrip, trader joe's

DailyDirt: Monopoly Isn't Just Some Game You Can Play…

from the urls-we-dig-up dept

We’ve talked about monopolies of various kinds around here before, because monopolies are oftentimes fascinating examples of markets not quite doing what most folks think markets should do. Monopoly issues are also not as black-and-white as they’re made out to be in the news, and there are some intriguing (unanswered) questions about how to properly regulate monopolies — and numerous examples of unintended consequences of poor regulation. Here are just a few more stories on monopolies that you might have come across.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: market power, monopoly, policy, pretzels, regulation, steve jobs, wage fixing, ykk, yoshida kogyo kabushikikaisha, zippers
Companies: apple, conagra, maxim marketing, palm, trader joe's, ykk

Why Trader Joe's Suing Pirate Joe's May Be Bad News For Ownership

from the secondary-markets-are-important dept

If you live near a Trader Joe’s, you’re probably well aware of the cult-like following these stores have. Hell, I’ll admit that probably 50% of the stuff in our pantry comes from Trader Joe’s and I could probably drive to either of the two near my house (we’re almost exactly halfway between them) blindfolded. But now it looks like Trader Joe’s is being something of a trademark bully, suing the interestingly named “Pirate Joe’s” store in Vancouver, British Columbia. There are no Trader Joe’s stores in Canada, and entrepreneur Michael Hallatt realized that this was a market opportunity. He regularly drives across the border, fills up his panel truck with goodies from Trader Joe’s in the US, drives back across the border and sells it at a decent markup in his shop. He suggests he’s spent somewhere around $350,000 at Trader Joe’s over the past two years, making him one of their best customers (and possibly their best overall customer). And they sued him, claiming trademark infringement.

Now, some are reacting emotionally to this, like Laura Heller from Forbes, who comes down on the side of Trader Joe’s, but mainly because it’s an emotional reaction. For example, part of the reason why she supports Trader Joe’s is because of this:

And finally, there’s the problem of pirated goods in general. Luxury brands regularly police pirated goods and employ legal tactics to stem the tide of faux or illegally obtained goods. Comparing cookie butter to Louis Vuitton may seem silly, but it’s the company’s currency and carries value in the marketplace.

Except these aren’t pirated goods. They’re not counterfeits. They’re legally purchased and resold. And that’s legal. When you buy something, it means you own it, and you’re supposed to be able to resell it on the secondary market. That’s actually a rather important part of our economy.

Thankfully, it appears that many legal experts have been pointing out that Trader Joe’s has no case. The SF Gate article linked above quotes a trademark lawyer who doesn’t see much of a case for TJs:

“I don’t think Trader Joe’s really has a chance, suing here in the U.S.,” said lawyer Greg Owen, a trademark, copyright and unfair competition expert with Owen, Wickersham & Erickson, an intellectual property firm in San Francisco.

If Trader Joe’s had sued in Canada, or if Pirate Joe’s were operating in the United States, the claim might be more viable, said Owen, who reviewed the lawsuit and motion to dismiss. He added, however, that the first-sale doctrine, which Hallatt is fond of citing and which lets people resell what they’ve bought, is more nebulous when perishable items are involved.

“On the flip side, Trader Joe’s is certainly benefiting from Hallatt purchasing the products,” Owen said. “They’re making money off him.”

Similarly, lawyer William Peacock, writing over at Findlaw explains why TJs has little chance of succeeding based on both venue (suing in the US) and the fact that you can resell what you’ve purchased. But, Peacock, like Owen, wonders why TJs would ever go after such a good customer:

The case presents a number of interesting questions, but here is the most important one: what is Trader Joe’s problem? Hallatt buys their products at retail cost and sells them in a market that they haven’t yet entered. They benefit financially from the arrangement. And if they do expand across the border, their normal retail prices, which are lower than his re-retail prices, would drive him out of business in a Vancouver minute.

Finally, law professors Kal Raustiala and Chris Sprigman, over at Freakonomics, have pointed out not just how ridiculous this lawsuit is, but how it could have a real impact on personal freedoms in terms of private property and the right to resell what you’ve purchased:

If TJ’s has the right to stop PJ’s from reselling their products, then any trademark owner might assert a similar right. Ford could sue Carmax for reselling Fords. Prince (the sports gear company, not the musician) could sue Play It Again Sports for reselling Prince tennis racquets. And if this were true, a trademark law that is aimed at preventing consumer confusion will be preventing something else entirely – competition.

Frankly, it’s a ridiculous lawsuit on all sorts of levels, and one hopes that the court recognizes the legal arguments, rather than the half-baked emotional ones. Trademark law is supposed to be about preventing consumer confusion, but there isn’t any here. Pirate Joe’s (amusingly changed to Irate Joe’s after the lawsuit started) isn’t trying to fool or confuse anyone. They’re totally upfront about the situation. There’s a demand in the Vancouver market, and Trader Joe’s isn’t serving it. So, Hallatt’s got a truck and he’s willing to use it to help both Trader Joe’s sell more, and the people of Vancouver get Trader Joe’s goods. Where’s the problem?

Some have argued about the potential “health and safety” aspect, but it sounds like Hallatt mostly avoids perishables or heavily regulated products like alcohol (sorry, no Two Buck Chuck). And, as Raustiala and Sprigman note, local regulators can handle any health and safety regulations. Trader Joe’s, in its filings, really tries to bend over backwards to claim some sort of sales “harm.” It argues that people from Canada travel down to stores in the US to buy their products, but that’s meaningless since Hallatt is doing the same thing, and opening them up to a wider market by including those who aren’t willing to make the trip. TJ’s response is that other shoppers who travel across the border are likely to buy more at TJs because (1) they have more selection and (2) they traveled across the border, so of course they’ll buy more. No joke:

Furthermore, it is reasonable to infer that a Canadian customer making the trip to the United States is likely to make a bigger purchase of goods to make the trip worthwhile.

Under that argument, TJ’s should make sure to put all of its stores as far away from where people live as possible. After all, don’t they want the few people who make the trip to buy more to make it “worthwhile.” Sometimes the arguments that lawyers come up with baffle me.

TJs also argues that if people have a bad experience with the food from Pirate Joe’s they may blame Trader Joe’s, but that seems unlikely and highly speculative on multiple levels. The products are still the same, they’re just being sold on the other side of the border.

Anyway, you can read some of the back and forth in the legal filings we’ve pasted below. The biggest legal issue they’re fighting over right now is the jurisdiction issue which (as mentioned above) also seems to favor Pirate Joe’s pretty strongly. Suing in the US makes almost no sense, and the hoops that TJs has to jump through to make it work seem like a huge stretch. But, in the end, as everyone else is asking, this seems like a really dumb lawsuit on multiple levels, and if it somehow comes out in TJ’s favor, in the long run, everyone loses out.

Filed Under: canada, first sale, michael hallatt, ownership, private property, property rights, reselling, trademark, us
Companies: pirate joe's, trader joe's