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.