On December 31, 2009, Eat’n Park, a restaurant group with its principal place of business in Pittsburgh, filed suit against Crumb Corps, a Texas corporation, for trademark infringement, trademark dilution, and unfair competition.
The complaint alleges that Crumb Corps sells “Smiley Faces” cookies which have a design that is confusingly similar to the registered trademark of Eat’n Park and are directly competitive products to the Eat’n Park SMILEY face cookies. Crumb Corps’s cookies are available via retail stores, catalogs, and online. Eat’n Park alleges that Crumb Corp’s sale of cookies using its smiling face design and the SMILEY word mark constitutes unfair competition.
- Katie Cooper
Ms. Cooper:
Doesn’t the near ubiquitous nature of the “smiley face” hurt Eat ‘n Park’s case here? Isn’t this akin to someone trademarking a thumbs up or a check mark? I would understand if E’nP had one design and one color, but they vary the design of the cookies depending on the season and there are multiple colors. How can E’nP claim a trademark on all cookies that look like smiley faces?
Ironically, this is pretty sad.