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

from the :( dept

Thu, May 28th 2015 3:38pm — Timothy Geigner

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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Filed Under: cookies, smiley faces, trademark
Companies: chicago american sweets & snacks, eat'n park

15 Comments

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BentFranklin (profile), 28 May 2015 @ 1:04pm

Unlike many improper trademark claims, these companies are both in the same market.
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Dark Helmet (profile), 28 May 2015 @ 1:53pm

Re:
It's a smiley face. A. Smiley. Face.
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Nom du Clavier (profile), 28 May 2015 @ 3:18pm

I don't often eat cookies when following trademark disputes, but when I do, I Eat'aSarc Frowny.
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Anonymous Coward, 28 May 2015 @ 4:11pm

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:
http://www.post-gazette.com/business/businessnews/2010/01/04/Eat-n-Park-not-smiling-over-other- chain-s-cookie/stories/201001040242

The Popcorn Factory's (that they sued, but dropped the case) mentioned in the link above has no nose:
http://www.thepopcornfactory.com/smiley-face-butter-cookies

I think Eat'n Park should be punched in their nose.
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Anonymous Coward, 28 May 2015 @ 4:20pm

Re:
Oooo.. this whole smiley face thing is clearly getting out of hand over there at The Popcorn Factory since the lawsuit was dropped. lol
http://www.thepopcornfactory.com/webapp/wcs/stores/servlet/Search?catalogId=10101&brandIdTab= TPF_&storeId=10201&langId=-1&pageSize=12&currentPage=1&beginIndex=0&sType=Si mpleSearch&resultCatEntryType=2&ip_navtype=search&searchKeywords=smiley+face
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Michael, 28 May 2015 @ 4:32pm

Can't we just declare that the eat n park trademark be changed to a frowney face? Not only would it be more appropriate, but fewer people would accidentally infringe.
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Anonymous Coward, 28 May 2015 @ 4:44pm

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.
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Anonymous Coward, 28 May 2015 @ 7:30pm

Re:
And even more sue-happiness. In early 2010, it was reported that Crumb Corps was their SEVENTH lawsuit since 2002 ..along with other smiley pissiness. Kinda takes the fun out of the smiley face. :-(

http://triblive.com/x/pittsburghtrib/news/tribpm/s_663965.html
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Anonymous Coward, 28 May 2015 @ 8:11pm

Except don't either of them realize that the Smiley Face was trademarked by itself decades earlier, so neither of them should be using it, let alone suing over it?

Look up Nicolas Loufrani.
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Anshar (profile), 29 May 2015 @ 5:13am

Registered Hero?
"Maybe it's time someone do a cookie with an "R" encircled by the treat, huh?"

Wait… would that be for "Registered Trademark" or "Robin, the Boy Wonder"?
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Brent Rogers, 29 May 2015 @ 6:01am

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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Frowny Face, 29 May 2015 @ 9:02am

Park n Eat (Universally Done for Eons)
You focking people are so outa gosdamned control.. I think I'll have a Smiley Cookie.
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Let me see if I got this right, 29 May 2015 @ 9:06am

Re: Well, let's sue a company for using smiley cookies for charity
Thanks soo much for saving this park n eat bunch tons of money searching for other smiley faced cookies culprits to waste their time and money in world court suing when they could be chewing..
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Larry, 29 May 2015 @ 12:20pm

Frownie Brownie
Back in 2005, in response to the Smiley cookie, a local competitor, Kings Family Restaurant hit back with their Frownie Brownie, seriously a big hit in Pittsburg.

http://s3-media2.fl.yelpcdn.com/bphoto/RRn0SPrqHocKhIxZVL6BSA/o.jpg
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Anonymous Coward, 29 May 2015 @ 12:20pm

If it was audible, Mr. O'Connell would be hearing the sound of my eyes rolling.

I'm putting you on notice that I intend to copy that.
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