Bakery Sues Other Bakery In Trademark Suit Over Unprotectable Elements

from the cookie-monster dept

There are a great many things that tend to annoy me about the sorts of trademark disputes we cover here at Techdirt. Overly aggressive parties policing trademarks in ways that extend far beyond the reasonable. A USPTO that seems all too happy to grant trademarks for things that it simply shouldn’t have, causing all kinds of chaos.

But perhaps the most frustrating is when a lawsuit is filed for trademark infringement on a bunch of elements strung together that don’t appear to be protectable trademarks at all. Take Crumbl, for instance. Crumbl is a cookie company out of Utah that is suing another company, Dirty Dough, for trademark infringement. At the center of the complaint are two items. First, that the founder of Dirty Dough used to work for Crumbl. Second, Dirty Dough is doing a bunch of things that Crumbl believes constitute trademark infringement. Such as:

“Specifically, Dirty Dough packages its cookies in boxes that perfectly fit cookies lying side-by-side, and that include whimsical, outline-shaped drawings, including a cookie with a bite taken out of it, has a weekly rotating menu, and includes a drawing in the shape of a cookie with a bite taken out of it in its décor and marketing,” the suit says.

As you’ll see in the filing below, that’s mostly it. Crumbl also reportedly filed a similar suit against another company called Crave.

As to the claims, well, c’mon now. Having cookies fit snugly in a box isn’t something you can trademark. Having “whimsical” drawings on that box, when they aren’t identical or even super similar, is also not something you can trademark. You’ll see in the document embedded that the packaging isn’t any more similar than the company logos the complaint also alleges are infringing (Dirty Dough on the left, Crumbl on the right).

I’m honestly struggling with this one. Both logos include an image of a cookie with a bite out of it. Other than that, they are almost perfectly dissimilar. One is just words, the other a picture. One is orange and the other black. Hell, Dirty Dough’s has its name as the majority of the logo. Where is the potential for confusion?

Bennett Maxwell, the founder of Dirty Dough, is not only going to fight this in court, but on social media as well under the hashtag #Utahcookiewars. For instance, here is a recent LinkedIN post.

It’s exactly the right tone to take with all of this. Whimsical derision is precisely what Crumbl’s lawsuit deserves on the merits.

So now we hope the courts take the same view.

Filed Under: , ,
Companies: crumbl, dirty dough

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Comments on “Bakery Sues Other Bakery In Trademark Suit Over Unprotectable Elements”

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Naughty Autie says:

Crumbl is a cookie company out of Utah that is suing another company, Dirty Dough, for trademark infringement. At the center of the complaint are two items. First, that the founder of Dirty Dough used to work for Crumbl.

The entire reason for the lawsuit is laid bare in that last sentence. Crumbl is suing because they’re pissed off that their fprmer employees have made a success of going it alone (as it were).

David says:

It's not an "unprotectable element"

The problem is that if you want any protection, the U.S. silliness that is called a “design patent” is the tool for it.

The stuff they sue over has nothing to do with trademark, or even trademark dress.

There are definitely copied design elements, and the U.S. in its eagerness to nail down any idea as legally protectable has invented design patents. I am not saying that they are a good idea, but without taking out such patents (and shelling over the necessary registration and upkeep fees), design, like most elements of ideas, are prone to inspire other designs.

That’s how culture worked while civilization was still in progress.

Ehud Gavron (profile) says:

Hate it when the story ending is [*censored*]

This was a great writeup. I also enjoyed the followup at: which is only available to subscribers, and unfortunately it being a fait accompli in settlment, may never get published. I hope that assumption is false.

I’m not a lawyer and find the lack of similarity in marks (a subjective standard) and “likelihood” (how much?) of consumer confusion (how judged?) to be a non-factor. As a juror I’d clearly have brought my John Grisham novel to voire dire and been excused, but had I not, I would have said this is not a violation.

I did ask my friend Chad. Chad GeePeaTea. He regurgitates the subjective standards, and then suggested I contact an IP lawyer.
Time to eat another blue pill. Happy weekend, all.

I worked for a cookie company called Originals. I then left and started my own cookie company called Nokoff. Both Originals cookies and Nokoff cookies are sold in boxes that allow the cookies to stay perfectly flat, avoid breakage while shipping, and keep them fresh. Also Nokoff does what Originals does in having fake bites taken out of some cookies. Is there a violation of US trademark laws likely in this circumstance?

ChaD GeePeaTea

I am not a lawyer, but I can offer some general information that might be helpful. Trademark infringement depends on several factors, including the similarity of the marks, the likelihood of consumer confusion, and whether there is evidence of intentional copying. In the scenario you described, it’s essential to consider the following:

Similarity of Marks: If the name “Nokoff” and the packaging design of Nokoff cookies are very similar to “Originals” cookies, this could potentially raise concerns about trademark infringement.

Likelihood of Consumer Confusion: If consumers are likely to be confused and think that Nokoff cookies are somehow related to or endorsed by Originals, this could be a significant issue.

Intent: If there is evidence to suggest that you intentionally copied elements of Originals’ branding, this could strengthen Originals’ case if they decide to pursue legal action.

Distinctiveness of the Elements: If the packaging and the practice of having fake bites taken out of cookies are unique and distinguishable features of Originals’ branding, this might be relevant.

To determine whether there’s a potential violation of US trademark laws, it’s advisable to consult with a qualified intellectual property attorney. They can provide you with a more accurate assessment based on the specific details of your situation and can help you take the necessary steps to ensure that your business operations are compliant with trademark laws. If Originals believes that their trademark rights are being infringed, they may choose to take legal action to protect their brand and seek remedies for any potential harm.

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