Organic Ice Cream Scoops Up Ben & Jerry’s [e163]

March 13, 2015

Nasir and Matt talk about an ice cream maker that is attempting to produce organic versions of Ben & Jerry’s flavors.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Welcome to our program. We have a good one today. My favorite type of food – well, I think it’s one of my favorites – ice cream. I think it’s my favorite dessert – actually, vanilla ice cream and brownies is my favorite.

MATT: Yeah, ice cream, you scream, we all scream for lawsuits.

NASIR: Wow. That was great. I love that.

MATT: There hasn’t been a lawsuit involved in this yet.

NASIR: No, there hasn’t.

MATT: Yeah, I should have jumped the gun there, but possibly… And so, you’re going to have to help me out with this because I don’t eat ice cream so I don’t know what’s even going on.

NASIR: Yeah, I’ll explain to you everything that you need to know.

MATT: It’s this cold food you eat with a spoon.

NASIR: I’ve been eating it since I was a kid so I’m pretty sure I’m an expert unlike everyone else.

MATT: I’ve had ice cream before so it’s not like I never had it, yeah. It’s just been a very, very long time. So, obviously, Ben & Jerry’s, that’s got to be one of the top ice cream makers – if not the top in terms of what you can buy in stores. I think people are familiar with them. We’ve talked about them before on the podcast, I believe, as a B Corp.

NASIR: Maybe. Yeah, probably. I’m sure we’ve mentioned them.

MATT: I think they’re kind of one of the biggest companies that’s referenced when you’re looking at B Corps.

NASIR: Yeah.

MATT: So, anyways, Ben & Jerry’s, they have these crazy flavors – or names, at least – and there’s this new company – or newer company, new-ish – Three Twins.

NASIR: Which is very misleading, by the way. Is it three sets of twins or triplets?

MATT: That’s a good question.

NASIR: I think, if they meant three people, they would say triplets, right?

MATT: Yeah, three twins doesn’t make sense. I don’t know what that’s supposed to mean, three twins.

NASIR: That would mean six people.

MATT: Yeah, my head’s exploding thinking about that.

NASIR: What’s weird is three twins, obviously, it’s the name, but then they have a picture of three different people.

MATT: Yeah, that’s why I’m confused.

NASIR: Already you know that these guys are a little crazy.

MATT: Something’s up.

NASIR: Something’s up.

MATT: So, basically, what he’s doing is trying to produce the organic version of some of these Ben & Jerry’s flavors. For example, Ben & Jerry’s has Chunky Monkey and Cherry Garcia. Three Twins has one called Cherry Chocolate Chunk and the carton says, “We’re not monkeying around with this combination of banana, walnuts, and chocolate.” It’s not another one with The Grateful Dead. Ben & Jerry’s has the Grateful Dead one and he does a little tribute to them as well saying, “You’ll be grateful that this sumptuous combination is available in organic.”

NASIR: Sumptuous.

MATT: Sumptuous?

NASIR: Sumptuous.

MATT: Yeah, I said that. That’s what I said.

NASIR: Yeah, you’re right.

MATT: Ah. So, basically, what it sounds like is he’s created these organic versions of Ben & Jerry’s flavors – at least some of them – which is kind of weird. I would have thought that Ben & Jerry’s would have had their own organic flavors by now anyways given the nature of kind of how they operate.

NASIR: That’s true.

MATT: But it’s interesting because, I mean, he admits to it. You know, “We’re not ripping off what they have. We’re paying a tribute to these flavors,” and, you know, it’s different because it’s organic. I said the lawsuit thing at the beginning. I don’t know if there is going to be lawsuit with this.

NASIR: Well, Matt and I were trying to figure out, okay, if Ben & Jerry’s would allege some trademark infringement issues because I’m sure they’ve trademarked their flavors – at least they hold some kind of trademark rights into their flavors – you know, what kind of rights would they have? At first, you know, there’s no likelihood of confusion that people are going to think Three Twins flavors are associated with or affiliated with the Ben & Jerry’s flavors. But, then again, it seems like that was almost their intention. And so, now it’s like, okay, maybe there’s some kind of fair use aspect to this about, you know, some kind of parody. But then, it’s kind of strange that you’re basically creating a permanent business model that emulates the parodying of Ben & Jerry’s flavors. That seems kind of strange to me and I would assume Ben & Jerry’s may have a problem with that in the future. I think I would. But, then again, Ben & Jerry’s is a little bit of a different organization and they’re not as aggressive culturally in the legal sphere so perhaps maybe that’s not the case.

MATT: Yeah. Sorry, I’m trying to figure out this twins thing. I was looking at their executive team. I don’t know. If Ben & Jerry’s did want to pursue it, I mean, that’s step one – whether they want to do anything about it or whether it’s giving them just more publicity which I guess they don’t need more publicity – it’s Ben & Jerry’s, it’s kind of the go-to. But, if they did want to do something about this, I would agree with you, too. They probably do have these names trademarked and, sorry, when I was reading the thing, I wasn’t listening to what you were saying. So, was that what you were talking about?

NASIR: We’re talking about ice cream in general, I believe, right?

MATT: Yeah.

NASIR: By the way, I just found some stuff about this twin thing. So, let’s see. Neal apparently is founding twin Neal Gottlieb, he is a twin. His twin brother, Carl and Carl’s fiancé, Liz, they had then dubbed trio’s home “Three Twins” and, when it came time to name his new company, Neal couldn’t think of a better business name than Three Twins. So, I guess, because he has a twin and is a third person, there’s three twins? I don’t know.

MATT: It’s going to take me too long to figure this out. I don’t need to embarrass myself by sweating this out where people can listen to it.

NASIR: Yeah, as if it’s some legal issue. Well, in a way, it’s kind of misleading, right? I think it’s false advertising for you to say, you know, you’re three twins as founders, you know, that’s six people. I don’t want a company that was founded by three people; I want six.

MATT: Sure, if Red Bull’s going to get sued then, yeah, they should definitely get sued, too.

NASIR: Yeah. Well, that goes to another issue about organic, right? I mean, what does it mean to be organic and what are the limitations of labeling your organic products? You know, this is somewhat of an old issue because organic products have been out for a while and the USDA has released quite a bit of documentation and certification processes that are pretty clear now. It used to be a little bit ambiguous because anyone can put organic on their products and it can pretty much be well and good. But, now, you know, there are some exceptions. But, basically, if you’re calling yourself organic, then you pretty much should be certified by the USDA. If you’re not certified, you may have some exceptions like some organic farmers who do some small amount of sales can be exempted from this or, if you don’t, you can’t use any USDA labels and there’s some other restrictions and so forth. But, pretty much now, you know, there is some level of trust value that consumers can have that, if you’re labeling your product “organic,” especially if it’s USDA-certified, that there’s been some minimal level of certification and processes to actually believe that kind of representation. Before, I think it was a little ambiguous.

MATT: Yeah, exactly. I mean, 2015, if it says “organic” on it, there’s a very, very good chance they were certified by the USDA in the US and what that means, let’s see, products made of less than 70 percent organic ingredients cannot be advertised as organic but can enlist individual ingredients that are organic which I actually have seen a lot of, if you look at ingredients, too. Of course, the plants can’t be genetically modified which is a hot topic.

NASIR: Yeah.

MATT: The easiest way to tell if something’s organic is just to see if it’s more expensive than what’s next to it.

NASIR: Yeah, I think that’s a major criticism, of course. There’s also the certification that’s 100 percent organic where all the ingredients are like that. Oh, no, which is 95 percent, right?

MATT: Yeah.

NASIR: That’s weird.

MATT: It’s the same thing with fat-free or low-fat.

NASIR: Exactly. But that’s very typical to the USDA guidelines. I know I just said, okay, you can have a little more trust of it, but just keep in mind that, you know, the USDA has a lot of exceptions – you know, a lot of minutia – in these claims. To be honest, they have a lot of outside influences on how they ended up developing these kinds of guidelines as well. So, it’s not 100 percent, as they would say.

MATT: Even when we said to be honest, like, in order to be honest, you only have to be 95 percent truthful – 5 percent of the time, you can just straight up lie to people.

NASIR: Exactly.

MATT: The organic thing is very interesting. My wife is very big on all of that stuff so I probably know more about it than I – well, not probably – I know more about it than I really ever cared to.

NASIR: Well, between you and I, we’re talking about organic ice cream, I think we have it covered then.

MATT: Yeah, I know about organics, you know about ice cream. On Monday’s episode, you said we were brothers. We’re actually twins.

NASIR: They call us the two twins because we’re two people and we’re twins.

MATT: The three twins. Ah, yeah, that’s great. The most confusing thing about this is the name. It’s not the organic ice cream copying Ben & Jerry’s. Three twins…

NASIR: Yeah.

MATT: How do I know that? There’s no king that’s at Burger King. Like, I’ve never seen a king there.

NASIR: Yeah, that’s true.

MATT: White Castle is not a castle.

NASIR: And it’s not white.

MATT: Oh.

NASIR: Well, I guess it is.

MATT: Yeah. There’s no White Castles in California so I haven’t seen one here.

NASIR: Most of them closed down, too. You know, I grew up in the Midwest, they really needed to be closed down, to be honest.

MATT: White Castle is the number one restaurant for like, “Oh, this will be good,” and then, like, “It’s not.”

NASIR: You regret it every time.

MATT: My wife didn’t even know it was real. She thought it was just that thing that was in the movie. And then, the first time she saw one when we went back in the Midwest, she’s like, “Oh, this is a real place?” It’s like, “Yeah.”

NASIR: Okay. So, bottom-line, there’s two legal issues, just to recap, and we have this aspect of, you know, basically copying somebody else’s ideas but in a very different way. You know, I mean, they’re different flavors, they’re similar comedic names, and obviously they considered the fact that Ben & Jerry’s could throw this an issue so I think they went ahead and got a fine line because they didn’t even just do same exact flavor, different name. They did a different name with some homage or allusion to the Ben & Jerry’s name which is a little bit different, I think. So, they’ll probably get away with that assuming, you know, I just hope Ben & Jerry’s doesn’t sue them for that because I think that you don’t want to defend it either. Even if you’re in the correct, you don’t want to have to go through the trouble of defending your young company. And then, there’s all this, of course, organic issue as well which I think is semi-old.

MATT: Yeah, it’s definitely older but, I mean, it’s kind of what we said back in the last week. If you’re going to advertise something, it has to be truthful. There’s just a little more wiggle room with the organic stuff.

NASIR: Well, very well, another episode in the books, #163. 163 episodes, that’s a lot. I think it’s a good time to reflect on that and reflect on iTunes and leave a five-star review.

MATT: Yeah, that’s a good idea – ten-star review.

NASIR: I was still waiting to see how this podcast would turn out, but I think I’m ready to pull the trigger, five stars.

MATT: I’m glad I convinced you.

NASIR: All right. Well, thanks for joining us, everyone.

MATT: Yeah, keep it sound and keep it smart.

Legally Sound | Smart Business

By

The Podcast Where Nasir Pasha and Matt Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to info@legallysoundsmartbusiness.com.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.

Latest Episodes

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

June 23, 2016

Nasir and Matt discuss the criminal charges facing FedExinvolving the alleged transportation of illegal drugs. They also talk about how business owners should address working with customers that may be breaking the law.

June 15, 2016

The guys return after a long break to discuss why Yahoo is auctioning off over 3,000 patents and how this decision will affect the longevity of the company.

May 25, 2016

Nasir and Matt discuss the increase in the salary thresholdfor exempt employees and how employerscan try to avoid paying overtime as a result.

May 18, 2016

Nasir and Matt discuss the Baltimore law that makes it very difficult to operate food trucks in the city. They also discuss all the legal restrictions tohaving a food truck.

May 11, 2016

Matt listens to Nasir recap the developing battle in his hometown of Vandalia, Ohio over whether a Dunkin Donuts can move into a location in close proximity to a local favorite donut shop. They then discusswhether the issue is more legal or personal.

May 9, 2016

The guys kick off the week by discussing a Nevada employee who is claiming she was fired for not supporting the Scientology beliefs of her employer.

April 27, 2016

The guys discuss the massive floods in Houston,how employers responded, and why one meteorologist became a local hero. They also discuss the steps businesses should take in preparing for storms outside the workplace.

April 20, 2016

The guys discuss the boycott of Amazon over the products of an unnamed presidential candidate. They also talkabout how a business should handle a boycott and whether it’s possible to exit one unscathed.

April 13, 2016

Click here to read HubSpot’s response on this topic. Nasir and Matt discuss the trend in startups to compensate programmers and other early employees with stock options and how the company culture at HubSpot isn’t what it seems.

April 6, 2016

Nasir and Matt discuss various lawsuits against social media platforms in which users are accused of artificially inflating their social currency.

March 30, 2016

Nasir and Matt discuss the class action suit against Jessica Alba’s Honest Company for allegedlyselling products that contained harmful chemicals.

March 23, 2016

Nasir and Matt talk about the story out of Texas that Mexican restaurants were reportedly attempting to ban Trump supporters from eating at their restaurants.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More