Over and over, Eat 'n Park sues companies that sell smiley face cookies, claiming infringement of Eat 'n Park's registered smiley cookie trademark. Over and over, the Post-Gazette, oddly, runs a big story about these lawsuits. (Here's another story. And another.) And over and over, the defendant's cookies lack the Eat 'n Park cookie's distinctive nose. Every year in my Trademark Law class, I show my law students pictures of the trademarked cookie and the allegedly infringing, noseless cookies, and the students always say that no one, even a child, would be confused.
I wasn't going to post a note about this latest lawsuit, but then today I saw the cover of the January 2010 issue of FamilyCircle magazine, which is ablaze with noseless smiley face cookies and which offers, on page 132, a detailed recipe for how to bake them. The FamilyCircle cookies look suspiciously like the cookies that Eat 'n Park just sued. Is another lawsuit in the offing?
A breathless Pittsburgh awaits the answer.
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