dirty dough – Techdirt (original) (raw)

from the allow-all-cookies dept

In the middle of last year, we talked about an odd lawsuit between two bakeries, Crumbl and Dirty Dough. Crumbl’s suit against Dirty Dough claimed both theft of trade secrets and trademark infringement, the latter of which revolved around two major claims. First, the owner of Dirty Dough used to work for Crumbl. That obviously isn’t the basis of any lawsuit that would be successful on the trademark claims, but is important because there was also the accusation of theft of trade secrets. The second main claim was that Dirty Dough took some distinctive packaging that Crumbl felt constituted trademark infringement. Sounds bad, until you get into the details.

“Specifically, Dirty Dough packages its cookies in boxes that perfectly fit cookies lying side-by-side, and that include whimsical, outline-shaped drawings, including a cookie with a bite taken out of it, has a weekly rotating menu, and includes a drawing in the shape of a cookie with a bite taken out of it in its décor and marketing,” the suit says.

You alarm bells should already being going off if you know much about trademark law. Most of what is talked about in the quote above is simply not protectable via trademark. The one thing the company could hang this lawsuit’s hat on would be the depictions of branding on the packaging, but only if they truly are quite similar. The problem is, well, here is the branding side by side.

Yeah, not similar at all. And while Crumbl might be very annoyed that it suddenly finds itself competing in the marketplace alongside a former employee, none of that turns any of this into an actionable claim of trademark infringement.

As a result, Dirty Dough launched a social media and billboard campaign to go along with its defense of itself in court. Much of it was handled quite whimsically, with the owner of Dirty Dough creating a bunch of mocked up billboard images that mostly just poked Crumbl in the eye for being bullies while also taking the time to state how good Crumbl’s products were. Being human, in other words.

Sadly, as far too often happens, what would be an interesting outcome in court has instead turned into a confidential settlement.

The largest of the three companies, Logan-based Crumbl, and a company that it had sued, Dirty Dough, agreed to a settlement, according to a court document filed Friday with the U.S District Court in Utah. The court document states that both companies are “finalizing a written agreement to memorialize the settlement.”

In July, Crumbl settled a similar lawsuit it had filed against another Utah-based rival, Crave Cookies.

While we don’t have every detail of the settlement, Crumbl has been forthcoming with a few details. It called the settlement “amicable,” for instance. In addition, it revealed that Dirty Dough has agreed to make some changes to its packaging, which is somewhat disappointing. And, finally, it seems that Dirty Dough also agreed to return materials to Crumbl after the court indicated that Crumbl was likely to succeed on that claim.

According to Crumbl’s statement, “as part of the case resolution, Dirty Dough returned the Crumbl information and has agreed to change certain cookie boxes in order to eliminate any potential confusion for customers. The remaining terms of the settlement agreement are confidential.”

Crumbl’s statement concluded: ”Crumbl and Dirty Dough are pleased that they have been able to work together to resolve this dispute and each remains dedicated to serving its customers with excellence. Crumbl and Dirty Dough wish each other success in their future endeavors.”

So it’s over. And Crumbl did get something out of the suit. The trademark claims still seem quite silly, so I guess we’ll just have to see how far Dirty Dough is going to go in its packaging changes.

Filed Under: cookies, trade secrets, trademark
Companies: crumbl, dirty dough

Bakery Sues Other Bakery In Trademark Suit Over Unprotectable Elements

There are a great many things that tend to annoy me about the sorts of trademark disputes we cover here at Techdirt. Overly aggressive parties policing trademarks in ways that extend far beyond the reasonable. A USPTO that seems all too happy to grant trademarks for things that it simply shouldn’t have, causing all kinds of chaos.

But perhaps the most frustrating is when a lawsuit is filed for trademark infringement on a bunch of elements strung together that don’t appear to be protectable trademarks at all. Take Crumbl, for instance. Crumbl is a cookie company out of Utah that is suing another company, Dirty Dough, for trademark infringement. At the center of the complaint are two items. First, that the founder of Dirty Dough used to work for Crumbl. Second, Dirty Dough is doing a bunch of things that Crumbl believes constitute trademark infringement. Such as:

“Specifically, Dirty Dough packages its cookies in boxes that perfectly fit cookies lying side-by-side, and that include whimsical, outline-shaped drawings, including a cookie with a bite taken out of it, has a weekly rotating menu, and includes a drawing in the shape of a cookie with a bite taken out of it in its décor and marketing,” the suit says.

As you’ll see in the filing below, that’s mostly it. Crumbl also reportedly filed a similar suit against another company called Crave.

As to the claims, well, c’mon now. Having cookies fit snugly in a box isn’t something you can trademark. Having “whimsical” drawings on that box, when they aren’t identical or even super similar, is also not something you can trademark. You’ll see in the document embedded that the packaging isn’t any more similar than the company logos the complaint also alleges are infringing (Dirty Dough on the left, Crumbl on the right).

I’m honestly struggling with this one. Both logos include an image of a cookie with a bite out of it. Other than that, they are almost perfectly dissimilar. One is just words, the other a picture. One is orange and the other black. Hell, Dirty Dough’s has its name as the majority of the logo. Where is the potential for confusion?

Bennett Maxwell, the founder of Dirty Dough, is not only going to fight this in court, but on social media as well under the hashtag #Utahcookiewars. For instance, here is a recent LinkedIN post.

It’s exactly the right tone to take with all of this. Whimsical derision is precisely what Crumbl’s lawsuit deserves on the merits.

So now we hope the courts take the same view.

Filed Under: cookie wars, cookies, trademark
Companies: crumbl, dirty dough