Throwback Thursday: Eat'n Park Still Suing Over Smiley Face Cookies After All This Time

from the :( dept

The more things change, the more they stay the same, as the saying goes. Over half a decade ago, Techdirt covered a bakery out of Pennsylvania that used trademark laws to keep another bakery from putting smiley-faces on its cookies. Frankly, it’s one of those stories we cover where the immediate question of how trademarks could be twisted into this nonsense is immediately followed by the assumption that the whole thing will soon go away, never to be repeated again.

Not so much in this case, as it turns out. Eat’n Park recently once again brought a federal trademark suit against another company for daring to put the universal symbol for happiness on a cookie.

Eat’n Park this week sued a Chicago company in federal court over its use of a cookie that the Pittsburgh restaurant chain says is too similar to its trademarked Smiley face cookie. The suit filed Tuesday said Chicago American Sweet & Snacks sells cookies called “Smiley’s” that Eat’n Park says are a lot like its product. Eat’n Park has sold its Smiley cookies since 1985 and has filed numerous trademark infringement suits against various companies over the years to protect the design.

It should be noted that the dispute also seems to be about the two company logos for their respective smiley-face cookie brands, not just about the baked goods. Here are the logos for both.

Now, let’s leave aside for a moment the fact that the two logos don’t look anything alike and are about as likely to be confused with one another as my manly physique is likely to be confused with a professional bodybuilder’s. Instead, I’d like to propose that there should be a provision in trademark law that goes something like this: if your distinctive logo is so generic that tons of your competitors keep accidentally coming upon the same base design as yours, nobody gets to trademark it. Think of it as something like an independent invention test for patents. We can call it the Geigner rule, because vanity is my trademark, jerks.

“In this particular case, the “Smiley’s Cookies” logo name and design used by the company infringes on our brand trademark,“ said spokesman Kevin O’Connell.

If it was audible, Mr. O’Connell would be hearing the sound of my eyes rolling. Nobody is associating a smiley-face cookie with any particular brand, because the very idea seems like the kind of thing that everyone came up with when making cookies in their home kitchens. Maybe it’s time someone do a cookie with an “R” encircled by the treat, huh?

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Companies: chicago american sweets & snacks, eat'n park

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Comments on “Throwback Thursday: Eat'n Park Still Suing Over Smiley Face Cookies After All This Time”

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Anonymous Coward says:

Re: Re: Re:

Other companies aren’t making a smiley face because they want to confuse customers. They just want to make a cookie with a smiley face on it.

If you want your customers to know it’s your cookie, that’s why you have the logo on your packaging – and although they’re ALSO suing over the logo, the two logos are not even close to similar.

Anonymous Coward says:

The smiley apparently stands for sue-happy.

Eat’n Park’s have a nose.

Smiley’s have no nose.

Crumb Corps LLC’s (that they also sued) has no nose:

The Popcorn Factory’s (that they sued, but dropped the case) mentioned in the link above has no nose:

I think Eat’n Park should be punched in their nose.

Brent Rogers (user link) says:

Well, let's sue a company for using smiley cookies for charity

I live in Toronto (Canada) and one of our most popular coffee shops, Tim Hortons, annually sells ‘smile’ cookies and donates the proceeds to charitable causes. Everyone gets a good feeling buying said cookie and charities benefit from the sales. This is promoted heavily as it benefits all parties concerned. I suppose that Eat’nPark (a company I’ve never heard of) has had it’s trademark infringed upon and Tim Hortons should immediately cease and desist selling said cookies because of the irreparable harm it’s causing – children’s charities be d@mned. I just don’t bloody well understand how something so generic can be trademarked.

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