Cupcake Wars

Not here in Pittsburgh - yet - but down in Austin, Texas, the Cupcake Class is melting down. "Hey Cupcake," which is part of Austin's trailer-food scene, and which sells cupcakes from an Airstream trailer decorated with - you've got it - a giant cupcake, recently filed a lawsuit against a pastry pirate, in this case The Cupcake Camper of Noblesville, Indiana -- which does the same. (As I read Google Maps, Noblesville is just north of Indianapolis.)

Here's a link to a report about the lawsuit, which includes photos of the suspiciously similar cupcake trailers.

Copying the idea of selling cupcakes from an Airstream trailer decorated with a giant cupcake is only the beginning. The frosting on the pastry is this: "In addition to being accused of copying the exterior appearance of the trailer, the suit accuses The Cupcake Camper of beginning to sell t-shirts that say "Real Men Eat Cupcakes" after "Hey Cupcake began selling shirts that say "Real Men Love Cupcakes."

I'm not one to kick a cupcake baker when he's down, but in this case the lawsuit seems ... a little farfetched. Hey Cupcake! filed applications to register trademarks in both the configuration of the trailer and in the phrase "Real Men Eat Cupcakes!," but both applications have been abandoned last year after the U.S. Trademark Office issued initial responses suggesting that neither had been shown to be "distinctive," as required by federal trademark law. For the time being, that leaves Hey Cupcake! with common law trademark rights, which generally are limited to the geographic territory where the goods (or services) are being marketed. In this case, it's not impossible to show that the central Texas cupcake marketplace overlaps with the Indianapolis cupcake marketplace. But it strikes me as a stretch, especially when the services are cupcakes being sold from a trailer. Sure, trailers move around. But has Hey Cupcake! ever taken its trailer on the road, so to speak?

More important, could it happen here? Pittsburgh's Cupcake Class could use cupcakes-from-a-trailer.