Monday, February 27, 2017

Time to Get Your Thin Mint On

It’s that time of year: time to beg, steal, or borrow for a few more boxes of Girl Scout cookies!  This is a particularly special year of the Girl Scout Cookie as it's the 100th birthday of young girls selling cookies to raise money for their troops.  Happy Birthday, Girl Scout Scout Cookies!  

As you may recall, I am the troop leader for my daughter’s Brownie Troop. I am also the Cookie Mom for the troop, mainly because no one else was dumb enough wanted to do the job. For anyone out there with young daughters, who is thinking, “I love Girl Scout cookies, maybe I should be the cookie parent one day!” call me before you make that commitment.   I won’t talk you out of doing it, but I will share some secrets I have found that make the experience easier. Here’s one of them.

Since February 18 when the cookies arrived at an airport hanger outside of New Orleans and I led a caravan of SUVs to pick them up, I have had stacks around my house like this:

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And a few more over here:

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And another one over here:

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The cookies are taking over my house.

The reason we have so many Girl Scout cookies is because the cookies are great! Everyone loves these things. I walk into Tulane with a few boxes to deliver to my daughter’s customers (aka my colleagues) and I am mobbed by law students who want to know where they can buy cookies. I went to my daughter’s school last week and some middle school kids attacked me. People go nuts for these cookies.

That people love the cookies is great because that makes them easy to sell. And let’s be honest, that’s really what the cookies are about—making lots and lots of cold, hard cash. Sure, you think about the little girl in her Brownie vest, walking around with a wagon of cookies, and that’s an adorable image, but really, cookies are about one thing and one thing only: M-O-N-E-Y. The Girl Scouts aren’t terribly shy about this. The Girl Scout organization talks about how cookies teach girls “entrepreneurial skills” (aka how to make money). Some girls are super sellers, sometimes by a little creativity. There are cash rewards for troops based on how much you sell; the more boxes you sell, the more you get per box. You can now buy cookies by the case online. For $20, your troop can get a credit card swiper and make cookie selling a business of the twentieth century. With a little ingenuity and more computer skills than I have, your troop can create cookie-selling apps and move the troop into the twenty-first century. This is a full on commercial enterprise that rakes in a lot of moola.

Don’t believe me? Let me put this in real terms: Our troop has 27 third grade girls, i.e. eight and nine year old kids. Our troop sold more than $10,000 worth of cookies.   Cookies are a serious business, emphasis on the word business.

Why am I writing about Girl Scout cookies on #PropertyLawProfBlog? Some of the cookie business is based on, you guessed it, property law! IP law to be specific. If you are out looking for your favorite Girl Scout cookie, you may notice that the names are slightly different than what you remember from childhood. Ask a Daisy in certain regions of the country for a box of Savannah Smiles and she won’t know what you are talking about. Why? One word: Trademark.

How trademark law gets wrapped up in Girl Scout cookies requires a little background on how Girl Scout cookies get made. Since 1936, Girl Scouts USA has been licensing bakers to make Girl Scout cookies in order to retain quality. (Prior to 1936, the girls made the cookies themselves. Here’s the original recipe.) The number of licensed bakers has fluctuated throughout the years, reaching as high as 29 licensed bakers in 1948 to as low as 2 licensed bakers, which is what we have today.

The two currently licensed bakers—ABC Bakers and Little Brownie Bakers—have divided up the country by region. Each region buys their cookies from only one baker. For example, being in New Orleans, we are part of the Louisiana East region and Louisiana East uses ABC Bakers exclusively, a change the region made just two years ago. That means our troop gets cookies only made by ABC Bakers. And that’s where trademark law pops up.

As bakers began cornering certain markets with their cookies, they also began trademarking the cookie names.  Take Samoas (my personal favorite). Samoas are the coconut-caramel-chocolate cookie with the hole in the center. Samoas were introduced to consumers in 1974 by Little Brownie Bakers. In 1986, Little Brownie Bakers decided to register the cookie name with the United States Patent and Trademark Office.   That was a wise move for Little Brownie Bakers because ABC Bakers rolled out its version of the same cookie in 1982 (though ABC Bakers didn’t register the trademark for it’s version of the cookie, the Caramel deLite until 2000).

Or take the Tagalong. The yummy peanut buttery goodness that is coated in chocolate. That was introduced to America in 1976 by Little Brownie Bakers, but not registered as a trademark until 1993. The ABC Bakers equivalent—Peanut Butter Patties—came out earlier but was registered later. Peanut Butter Patties were first sold in 1972 and the trademark was registered in 2000.

That Peanut Butter Patties and Caramel deLites were both registered in 2000 makes sense; ABC Bakers obviously got a lawyer who said the trademarks should be registered and ABC Bakers went on a registration spree. Why Little Brownie Bakers decided to register Samoas in 1986 but hold off on registering Tagalongs until 1993 is quite befuddling.

What’s most surprising about this story to me is why didn’t Girl Scouts USA claim ownership of these names at the outset and then have licensing agreements with the different bakers so that all of the bakers could use the same names (and the same recipes) and cut down on confusion? Girl Scouts USA has trademarked some of the cookies names, so it’s not like the thought hasn’t crossed their mind. Take Thin Mints, the best selling cookie nationwide. (And in our troop; 33% of our cookie sales were Thin Mints.) The trademark for Thin Mints was registered on August 9, 2011 to Girl Scouts USA. Both bakers have cookies named Thin Mints, and presumably both bakers are allowed to use the name because they have a licensing agreement with Girl Scouts USA. Trefoils became a registered trademark at the same time as Thin Mints, though interestingly only Little Brownie Bakers uses the name Trefoils. ABC Bakers calls the cookie Shortbread, which is certainly descriptive, though not particularly creative.  

So there you have it. Property law really is everywhere, even in those boxes of Girl Scout cookies you now want to go buy. And if you can’t find any cookies from a Brownie near you, just let me know; we’ve got a few extra boxes laying around here.

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