John M. Earle is the owner of the federally registered Cupcake and Crossbones trademark (pictured above) for ornamental pins, duffle bags, wallets, shirts, polo shirts, sweatshirts, hats, shorts, pants, scarves, and jackets.
Johnny Cupcakes, Inc. (“Johnny Cupcakes”) is the company which sells merchandise emblazoned with Earle’s Cupcake and Crossbones mark. Johnny Cupcakes has two stores in Massachusetts (Boston and Hull) and one store in Los Angeles, California, along with its online store found at the website http://www.johnnycupcakes.com/.
On March 3, 2009, Johnny Cupcakes and Earle filed a trademark infringement lawsuit against two Ontario, California residents, Clark Perez and Jo-Ann Perez, for supposedly selling “counterfeit” acrylic necklaces on eBay that display the Cupcake and Crossbones mark (the authentic necklace is pictured above) and which are apparently being mailed from a particular U-Store-It Trust location in California (and thus the reason the U-Store-It self-storage chain is named as a party). See Johnny Cupcakes, Inc. et al. v. U-Store-It Trust et al., Case No. __________ (D. Mass.). A copy of the complaint can be viewed here.
The causes of action are counterfeiting under 15 U.S.C. § 1114, federal trademark infringement and unfair competition under 15 U.S.C. § 1125(a), federal trademark dilution under 15 U.S.C. § 1125(c) [ed - famous?. . . really?], and common law trademark infringement and unfair competition.
A quick search of eBay did not reveal any current listings of any Cupcake and Crossbones necklaces (counterfeit or otherwise).