Wednesday, March 4, 2009

“Smiley” Cookie Owner Brings More Frowns With Another Trademark Infringement Lawsuit

I previously blogged (link here) about the trademark infringement lawsuit brought by Eat N' Park Hospitality Group (“Eat 'N Park”) against The Clever Cookie Corp. over the latter company’s sale of cookies that Eat 'N Park claimed were “confusingly similar” to its federally registered smiley face design for cookies (pictured above). This lawsuit – filed in 2007 and technically dismissed for want of prosecution only to be refiled by Eat 'N Park again on June 26, 2008 (see Eat ‘N Park Hospitality Group, Inc. et al. v The Clever Cookie Corp., Case No.08-cv-00886 (W.D. Penn)) – remains pending.

Well, Eat 'N Park is at it again. On February 26, 2009, the company filed a similar trademark infringement lawsuit against a New Jersey-based online company named Forget-Me-Knot Gifts (“FMK”) over its sale of “Smiley Face” cookies. See Eat ‘N Park Hospitality Group, Inc. et al. v Forget-Me-Knot Gifts, Case No. 09-cv-00255 (W.D. Penn.). A copy of the complaint can be found here.

Based on what could be found on their website, FMK appears to sell smiley face cookies as part of their business of selling gift baskets and cookie bouquets.

Forget-Me-Knot Gifts'
Get Well Basket and Cookie Bouquet

FMK may have already decided that it does not want to fight the lawsuit – the links where its smiley face cookies appear all indicate that “SORRY, THIS GIFT IS CURRENTLY NOT AVAILABLE. We are redesigning this gift...please check back for new version.”

And while it’s sad that a company like Eat ‘N Park can stop a small business like FMK from using a universally recognized design like the smiley face on a cookie (and the company isn’t even Franklin Loufrani of SmileyWorld fame), who can blame them for not wanting to spend hundreds of thousands of dollars just to defend its right to use the design – with very little chance of recovering any attorney’s fees even if FMK were to prevail.

But let’s see Eat ‘N Park go up against the victor of Loufrani v. Wal-Mart Stores, Inc., Opposition No. 91152145 (TTAB Filed July 23, 2002). [Interesting Sidenote: When I typed “SmileyWorld” into the GOOGLE brand search engine, Eat ‘N Park’s website came up as a sponsored link. Looks like Eat ‘N Park has purchased Mr. Loufrani’s mark as a Google adword. I guess Eat ‘N Park has no problem trading off the goodwill that has been built up by the self-proclaimed king of all Smileys.]

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