I must vent — I can’t help it. Someone is infringing upon the Eat ‘N Park smiley cookie trademark. The “Clever Cookie Company,” a New York-based company that sells kosher goods via the Internet, has begun producing cookies that are nearly identical to my beloved smiley cookies. If only I was the one representing Eat ‘N Park. I would let loose the virtual wrath of generations of angry, hungry steel workers on those clever bakers in Long Island. Clever Cookie Company indeed. Don’t mess with my Smiley Cookie!®
Admittedly, my Pittsburgh bias is showing through here. Eat ‘N Park restaurants and their well-known baked goods are a staple of the town that I came to love during the years that I lived there. What really leaves crumbs in my covers, though, is the difficulty that the public and press have with recognizing the trademark law issues here. Not because I feel that they should have a better understanding of the sometimes counter-intuitive nuances of trademark law, but because I feel that they should have a better understanding of trademark law before they crush the cookie into crumbs. Here is what some of the locals are saying:
“As far as I know the law – all you need to do is change a product 20%, and there is no copyright infringement.” (confusing copyright with trademark)
“Surely that smiley face must be in the public domain by now. Everyone uses it. There would be lawsuits galore!” (trademark rights, unlike copyrights, can exist in perpetuity)
“Does that mean Eat ‘N Park will be suing everyone who uses emoticons?” (Eat ‘N Park owns trademark rights for smiley faces on COOKIES,* not on all things in the universe)
“If Eat ‘N Park somehow prevails, Kings never has to sweat Denny’s introduction of Malevolent muffins or Scowling scones.” (this one is actually pretty funny, although a little misguided)
Eat ‘N Park has a legitimate case. Fortunately, they are well-represented by the Webb Firm in Pittsburgh and I hope that they get a fair shake in court. I also pray that the Clever Cookie Co. does not retain my firm to represent them, as I could not in my heart defend them. I am loyal to just one cookie.
* and pancakes too, actually