Do Morons In A Hurry Eat Cupcakes?

from the circle-with-a-dot? dept

Thu, Aug 21st 2008 11:48am — Mike Masnick

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.

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Filed Under: cupcakes, trademark
Companies: famous cupcakes, sprinkles cupcakes

45 Comments

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Anonymous Coward, 21 Aug 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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Anonymous Coward, 21 Aug 2008 @ 11:59am

Looking sort of like a breast?
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Anonymous Coward, 21 Aug 2008 @ 12:04pm

Re:
But how old are the cupcakes?
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another mike, 21 Aug 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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Anonymous Coward, 21 Aug 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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Ima Fish, 21 Aug 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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Tim Malloroy, 21 Aug 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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Dale, 21 Aug 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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Josh, 21 Aug 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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anymouse, 21 Aug 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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ehrichweiss, 21 Aug 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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BTR1701, 21 Aug 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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Anonymous Coward, 21 Aug 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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drkkgt, 21 Aug 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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Anonymous Coward, 21 Aug 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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Killer_Tofu (profile), 21 Aug 2008 @ 1:29pm

Lol
What does Target have to say about this?
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some old guy, 21 Aug 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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youcantbeserious, 21 Aug 2008 @ 1:30pm

Further proof that humanity just needs to be wiped out
Starting with the lawyers...evidently.
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Paul, 21 Aug 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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JT, 21 Aug 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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Anonymous Coward, 21 Aug 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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Pamela Johnston, 21 Aug 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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Anonymous Coward, 21 Aug 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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redhammy, 21 Aug 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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DittoBox, 21 Aug 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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Anonymous Coward, 21 Aug 2008 @ 1:56pm

This is called Trade Dress. A perfectly valid use of trademark law.
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Emerson, 21 Aug 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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Anonymous Coward, 21 Aug 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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Anonymous Coward, 21 Aug 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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hegemon13, 21 Aug 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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Michael G., 21 Aug 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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Anonymous Coward, 21 Aug 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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Perf, 21 Aug 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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7, 21 Aug 2008 @ 4:29pm

um yeah...
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Anonymous Coward, 21 Aug 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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LBD, 21 Aug 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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Atagahi, 22 Aug 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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Ronald J Riley (profile), 22 Aug 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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Azrael, 22 Aug 2008 @ 3:48am

Re: Re: Finally a topic :)
Patent troll, greedy bastard or simply a dumb redneck?
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Twinrova, 22 Aug 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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Anonymous Coward, 22 Aug 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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Anonymous Coward, 22 Aug 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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Anonymous Coward, 22 Aug 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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Ronald J Riley (profile), 23 Aug 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.
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Dean, 23 Aug 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?
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