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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.


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.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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