Andrew Lux

Litigation Associate Andrew Lux shared his insights with David Page (creator of Diners, Drive-Ins and Dives, author of Food Americana, and longtime international journalist) for his Substack Culinary Characters Unlocked, on the legal strategies Trader Joe’s might employ to challenge Smucker’s lawsuit over its Uncrustable sandwich.

Excerpts:

Attorney Andrew Lux, says, “I think that is one of the defenses that Trader Joe’s is going to raise here, is that this is a functional shape, that there’s only one way to do a round, crustless sandwich, and because this is the only way to do it, you can’t necessarily have trade dress protection for it.”

And he says Trader Joe’s lawyers have a big challenge ahead of them. “I think it’s going to be an uphill battle,” Lux told me. “In addition to the functionality argument, another thing you have to prove is the likelihood of confusion. How likely is it that a customer going and deciding between these two products will be confused over the source of the product? People go to Trader Joe’s to get Trader Joe’s products. So establishing not only that the shape of the sandwich is not functional, but also that customers confuse the two when they go to Trader Joe’s, it’s definitely going to be an uphill battle in my opinion.