Do Morons In A Hurry Eat Cupcakes?

from the circle-with-a-dot? dept

Reader GeneralEmergency alerts us to yet another bizarre trademark lawsuit -- this time involving cupcake shops. Apparently, there's some fancy cupcake-store-to-the-stars, called Sprinkles Cupcakes that has trademarked putting a circle with a dot in the middle on top of its cupcakes. Another cupcake company, Famous Cupcakes also started putting a circle with a dot on top of their cupcakes -- so now they're heading to court. I'm sure this is what the original creators of trademark law intended: stopping dastardly cupcake makers from decorating their cupcakes in a similar manner.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 11:59am

    What's next? Donuts shops getting sued? That could be a "Dot in a Circle" logo too. GE cracks me up!

     

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  2.  
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    Anonymous Coward, Aug 21st, 2008 @ 11:59am

    Looking sort of like a breast?

     

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  3.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 12:04pm

    Re:

    But how old are the cupcakes?

     

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  4.  
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    another mike, Aug 21st, 2008 @ 12:05pm

    moron in a hurry to satisfy a sweet tooth

    Actually, this seems like the proper use of trademark law, finally. One cupcake company trying to use another cupcake company's trademark. I don't know about the rest of you but I can't tell one cupcake from another unless they paint their logo on the top. If I saw two cupcakes with a circle and a dot on the top, I might assume they were from the same company. I can easily see how a moron in a hurry to satisfy a sweet tooth could be confused.

     

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  5.  
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    Anonymous Coward, Aug 21st, 2008 @ 12:17pm

    Re: moron in a hurry to satisfy a sweet tooth

    I regularly do bake sales, and have found that to be true too! I usually spray paint a logo, phone number, and website on my cupcakes so people know I made it. But more recently, I've found that a piece of fruit does the trick too. You know- a whole cucumber, watermelon or a 2 lb uncut pineapple. It just needs something that just broadcasts "Made by an idiot." Because it's not the quality of the product, but the branding that generates repeat business!

     

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  6.  
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    Ima Fish, Aug 21st, 2008 @ 12:17pm

    Re: moron in a hurry to satisfy a sweet tooth

    I'd agree in some circumstances. However, was this so called trademark registered? Did each cupcake use the corresponding cupcake ® (circled R) mark?

    If it was not registered, then did each cupcake have a corresponding use TM mark?

    And here's another problem I have, is this mark widely known enough to cause any confusion in the marketplace? According to the article the company is a niche market (to the rich, who make up a small and increasingly smaller population in the US) so the vast majority of consumers would not be confused.

     

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  7.  
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    Tim Malloroy, Aug 21st, 2008 @ 12:36pm

    Sprinkles is well known here in California. I understand their concern. People here associate the symbol with Sprinkles cupcakes and for a rival company to use the same or very similar symbol or design in a similar manner is improper.

    But, being a libertarian, I think, "Did they contact the rival and ask them to stop first or offer a compromise?" Not likely in todays litigious state of affairs.

     

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  8.  
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    Dale, Aug 21st, 2008 @ 12:46pm

    No Candy

    Note that Sprinkles cupcakes puts a candy "Modern Dot" on top of every cupcake they sell. Famous Cupcakes does not use the candy dots on their cupcakes, but instead uses a "nested circle design" element on their packaging and website. It you saw the two cupcakes side by side, sans packaging, even a moron in a hurry would never mistake one for the other.

     

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  9.  
    identicon
    Josh, Aug 21st, 2008 @ 12:51pm

    I'm ashamed to admit that I know about this sort of stuff

    For those who don't live in LA, this might seem like a joke... but LA operates by its own set of rules.

    High-end cupcakes are big business. These things go for at least $3 each and the tiny storefront routinely has a line that stretches around the block.

    Besides being a particular type of sugar rush (i.e,. the frosting has a distinct taste, only certain flavors are available each day), the Sprinkles brand is deeply enmeshed in the town's gifting economy (e.g., "thanks for getting me this audition... have a gift basket"). The national attention from Oprah, etc. has made them into luxury items.

    However, not everyone who gives/gets these things actually eats them (carbs are a sin). Therefore, being able to tell just from sight that you're dealing with the authentic article is important. It's pretty much the same as getting a real vs. knock-off designer handbag as a gift - while they're both functionally the same, the knock-off has much less value as a status symbols.

    I hate to admit it, but this seems exactly like the "moron in a hurry" test is designed to protect. Moreover, judging from their site, it seems that Famous Cupcakes seems to be setup explicitly as a knock-off.

     

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  10.  
    identicon
    anymouse, Aug 21st, 2008 @ 12:57pm

    "even a moron in a hurry would never mistake one for the other."

    You obviously overestimate the ability of our morons here in the USA....

    "Only two things are infinite, the universe and human stupidity, and I'm not sure about the former" Albert Einstein

     

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  11.  
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    ehrichweiss, Aug 21st, 2008 @ 1:14pm

    Re: Re: moron in a hurry to satisfy a sweet tooth

    You're right about the fact that a MAJORITY of consumers wouldn't be confused. When they updated the Trademark code they did 2 things: they changed it to make it so that "likely" dilution of trademark was an option, but then they made the stipulation that it be a nationally recognizable trademark. Sprinkle's is likely gonna lose this one.

     

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  12.  
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    BTR1701, Aug 21st, 2008 @ 1:17pm

    Sprinkles

    While the trademark fight may be silly, Sprinkles does make a damned good cupcake. I always stop by for a couple of milk chocolates whenever I'm in Beverly Hills. It's like heaven in your mouth...

     

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  13.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 1:18pm

    Re: Re: moron in a hurry to satisfy a sweet tooth

    It does not have to be a nationwide issue, if the primary market area can be confused, that sounds reasonable to me. If the people I market my trademark to are at risk of being confused then it seems like a proper application. Service area is not a factor.

     

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  14.  
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    drkkgt, Aug 21st, 2008 @ 1:21pm

    Re: I'm ashamed to admit that I know about this sort of stuff

    really? cause looking at the two sites, they seem very different to me. Different icing layouts, different colors, even the page them selves are different layouts. Even looking at the cupcakes themselves, seems like most of the famous ones use some type of theme for it's toppings, from little santas to trees, etc.

     

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  15.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 1:26pm

    re: anonymous coward @ 11:59am

    better yet, the cupcakes come in three sizes.

    do you want the b cup, c cup or DD cup?

     

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  16.  
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    Killer_Tofu (profile), Aug 21st, 2008 @ 1:29pm

    Lol

    What does Target have to say about this?

     

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  17.  
    identicon
    some old guy, Aug 21st, 2008 @ 1:30pm

    @Mike

    Mike, you forgot to actually make a case for how this was abuse of trademark law. One company puts their trademark on their product, another company copies it. Customers get confused. Isn't this EXACTLY what trademark law is for?

     

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  18.  
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    youcantbeserious, Aug 21st, 2008 @ 1:30pm

    Further proof that humanity just needs to be wiped out

    Starting with the lawyers...evidently.

     

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  19.  
    identicon
    Paul, Aug 21st, 2008 @ 1:31pm

    Re: moron in a hurry to satisfy a sweet tooth

    How often do people buy cupcakes of unknown origin? Its either made by the shop that's selling them OR its clearly labeled if its in a shop that sells multiple brands.

    Maybe if someone on a street corner was selling them I can see people getting confused. Or maybe if it caters to the stars, its gotta worry about press, "Angelina Jolie spotted eating a Famous Cupcake!" but OH NO, it was a Sprinkle's Cupcake!!!

     

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  20.  
    identicon
    JT, Aug 21st, 2008 @ 1:36pm

    Differences...

    That was also the first thing I did and I don't know either company but I can tell the difference by appearance.

    Famous Cupcakes has a swirl icing with a holiday related candy or plastic on top (like most retail grocery stores). Sprinkles is smooth icing with the dot and circle.

     

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  21.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 1:37pm

    Re: @Mike

    You missed the point where he said he believes people wouldn't get confused. Plus, I think I'm gonna put a single dot on my cupcakes and then trademark that. Or maybe i'll but a dot in a circle, in another circle and trademark that. Or hey, why stop at cupcakes? lets go to regular cakes. I'll trademark "Happy Birthday" on them. Cause you know, I doubt the world never saw a dot on a cupcake before. They're on cheap cupcakes too. I'm not entirely sure if they are the pioneers of it.

    So yea... this could very well be an abuse of trademark law. However, if you're going to throw out all those assumptions as fact (that another company is copying, people are getting confused, or your unsaid assumption: that they were even the first ones), then yea, it wouldn't be. But you set up your argument with certain assumptions so your conclusion can't be wrong. You're a tricky debater, so while your sentence has a logical conclusion, its your assumptions that are questionable.

     

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  22.  
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    Pamela Johnston, Aug 21st, 2008 @ 1:40pm

    takes the cake

    oh no, someone, alert the girl scouts quickly. they can make picket signs covered with frosting, and then they can trademark that!

     

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  23.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 1:49pm

    Magic 8 Ball Prediction

    I asked my Magic 8 ball "If a business is based on smooth icing cupcakes with a dot on a circle, how will it do?" it's response was "Outlook not so good".

     

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  24.  
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    redhammy, Aug 21st, 2008 @ 1:54pm

    disturbing

    I'm more disturbed by the fact that there is a cupcake-store-to-the-stars than I am about any trademark issues. Talk about being obsessed with image...

    We knew this day would come. The cupcake wars have begun.

     

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  25.  
    identicon
    DittoBox, Aug 21st, 2008 @ 1:54pm

    Re: Re: moron in a hurry to satisfy a sweet tooth

    You're missing the point.

    The "brand" per se isn't just a logo but what the logo means to the customer. Brand loyalty comes from owning a good quality product from a given company, and then subsequently purchasing more of the same product or other products from that company. A brand is what the company stands for in the marketplace and not just fancy logos and sleek marketing, it's collective consumer experience with a company's products.

    The visuals are just reminders that what you're buying is produced by that company.

    So if one small cupcake boutique bakes Damn Good cupcakes with a unique look to it, and finds that the community identifies that look with their product and business they will trademark it. The community now identifies that look with that business and their quality cupcakes. If some cut-rate cup cake company begins selling similar looking cup cakes that taste like shit, it damages your brand.

    Going after a trademark violation like this protects customers from buying terrible cup cakes.

    What's so wrong with that?

     

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  26.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 1:56pm

    This is called Trade Dress. A perfectly valid use of trademark law.

     

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  27.  
    identicon
    Emerson, Aug 21st, 2008 @ 2:00pm

    Re: Magic 8 Ball Prediction

    I always thought that response meant I should change my email client to Eudora.

     

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  28.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 2:03pm

    Re: Re: Re: moron in a hurry to satisfy a sweet tooth

    It does not have to be a nationwide issue, if the primary market area can be confused, that sounds reasonable to me. If the people I market my trademark to are at risk of being confused then it seems like a proper application. Service area is not a factor.

    Interesting point, but does Sprinkles then own said design on a national setting? Because that's what trademark grants.

     

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  29.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 2:19pm

    Re: I'm ashamed to admit that I know about this sort of stuff

    Josh -> High-end cupcakes are big business. These things go for at least $3 each and the tiny storefront routinely has a line that stretches around the block.

    This is sad.

     

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  30.  
    identicon
    hegemon13, Aug 21st, 2008 @ 2:22pm

    Re: moron in a hurry to satisfy a sweet tooth

    IF the cupcakes looked anything alike, I might agree. However, simply putting something in the center of the frosting on top is not a reasonable trademark, and that's the extent of the similarity to my eye. Maybe I'm missing something.

    I think Sprinkles is mostly angry that someone else copied their business plan of selling overpriced cupcakes in little individual boxes. Maybe Starbucks should sue all the other $4-a-cup coffee shops out there.

     

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  31.  
    identicon
    Michael G., Aug 21st, 2008 @ 2:59pm

    Man...

    Just remember next time don't write CONTAINS PORN in big red letters all over the package!

     

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  32.  
    identicon
    Anonymous Coward, Aug 21st, 2008 @ 3:04pm

    Yes!!

    There is one of these fancy cupcake stores where I live. They chargeabout $4.00 for a cupcake just like you would make at home. Only morons in a hurry buy these things.

     

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  33.  
    identicon
    Perf, Aug 21st, 2008 @ 3:16pm

    Those are cupcakes?!

    When I glanced and saw the circle within a circle, I thought they were mini donuts.
    /scarc

     

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  34.  
    identicon
    7, Aug 21st, 2008 @ 4:29pm

    um yeah...

     

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  35.  
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    Anonymous Coward, Aug 21st, 2008 @ 4:50pm

    "I'm sure this is what the original creators of trademark law intended"

    As truncated, this sentence is essentially correct.

     

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  36.  
    identicon
    LBD, Aug 21st, 2008 @ 7:33pm

    This seems...

    I hate to say it, but this does seem roughly correct for the use of trademark. I mean, apple has 'apple' trademarked in refrence to computers, and this is a much more unique thing then a macintosh apple like one would buy at a store. I have no complaints about this suit except "Why the hell did you bring it up?"

     

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  37.  
    identicon
    Atagahi, Aug 22nd, 2008 @ 2:56am

    Cupcakes

    Trademarks were derived from marks bakers put in pies and marks other product makers used to identify their goods before people were widely literate. People could figure out exactly who made the product by the mark.

    So the good will that Sprinkles' mark in its cupcake icing creates is exactly what trademark law was designed to protect.

     

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  38.  
    icon
    Ronald J Riley (profile), Aug 22nd, 2008 @ 3:14am

    Re: Finally a topic :)

    Mike Masnick needs to trot down to a few cupcake shops and experimentally determine trot rather he is also a MORON.

    Some people are genetically challenged while others are crippled by their upbringing. Based on Mike's moronic writings I suspect that he is dually challenged.

    Returning to the issue of distinctive trademarks, it is Mike's which others seem to be copying, bluster and posturing without any grasp of what they are talking about.

    Ronald J. Riley,


    Speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.patentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 - 9 am to 9 pm EST.

     

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  39.  
    identicon
    Azrael, Aug 22nd, 2008 @ 3:48am

    Re: Re: Finally a topic :)

    Patent troll, greedy bastard or simply a dumb redneck?

     

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  40.  
    identicon
    Twinrova, Aug 22nd, 2008 @ 4:46am

    Hypocrisy strikes again.

    Isn't the whole damn purpose of a trademark is to protect a company's identity so consumers aren't confused?

    You may think a bullseye on a cupcake is insignificant (and I don't appreciate the mockery of this blog) but I'll bet you'll be completely upset if someone stole Techdirt's trademarks and passed it off as their own.

    Delete this blog. It doesn't belong on THIS website.

     

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  41.  
    identicon
    Anonymous Coward, Aug 22nd, 2008 @ 7:01am

    Re: Re: Finally a topic :)

    Ronald J. Riley -> Mike Masnick needs to trot down to a few cupcake shops and experimentally determine trot rather he is also a MORON.

    What ?
    That doesn't make sense.

     

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  42.  
    identicon
    Anonymous Coward, Aug 22nd, 2008 @ 9:47pm

    Re: Re: Re: Finally a topic :)

    Patent troll, greedy bastard or simply a dumb redneck?
    All of the above.

     

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  43.  
    identicon
    Anonymous Coward, Aug 22nd, 2008 @ 9:48pm

    Re: Re:

    Looking sort of like a breast?

    But how old are the cupcakes?

    And are they starting to sag?

     

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  44.  
    icon
    Ronald J Riley (profile), Aug 23rd, 2008 @ 3:02am

    "And are they starting to sag?"

    Yep. I think that the quality of Mike's writings has been sagging for a long time. I am not sure it has much further to go.

    Ronald J. Riley,


    Speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.patentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (202) 318-1595 - 9 am to 9 pm EST.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Dean, Aug 23rd, 2008 @ 7:34am

    of morons and trolls...

    Two points. First, actually, yes, a moron in a hurry might be confused by the cupcakes. It actually sounds like a consumer confusion (for a change).

    Second, reading the comments here has become next to impossible with all the patent trolls and their witty banter circling about. Can you finally take your own advice and implement some form of moderation?

     

    reply to this | link to this | view in thread ]


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