There’s a really long line outside a shop that just opened in my neighborhood. And there should be, because the product is super yummy and everything about the packaging and delivery is spectacular, except . . .
Oh no, DŌ.
The owner of the shop, Cookie Dough, Inc., filed two applications with the Trademark Office to register DŌ for:
“Cookie dough; Cookies; Bakery goods and dessert items, namely, cakes, cookies, pastries, candies, and frozen confections for retail and wholesale distribution and consumption on or off the premises; Edible cookie dough not intended for baking; Frozen cookie dough.”
Unsurprisingly, the Trademark Office is refusing to register DŌ on a variety of grounds, including that “the applied-for mark appears to be generic in connection with the identified goods and, therefore, incapable of functioning as a source-identifier for applicant’s goods.”
In other words, Cookie Dough, Inc. can’t have exclusive use of the word “dough” for selling dough because people who sell dough, need to be able to say “dough” when selling dough. And in the world of trademarks “dough” and “DŌ” are the same thing.
This is such a terrible shame, because they’re going gangbusters and I suspect they’re getting a lot of buzz. It’s just so sad to have to deal with a risk that could have been avoided, especially when everything else about the business idea and execution are so awesome.
The U.S. Supreme Court recently ruled in the Star Athletica v. Varsity Brands case, which involved copyrights for designs on cheerleading uniforms.
The Court ruled in favor of Varsity Brands (the owner of the copyrights), but fashion designers shouldn’t get too excited. The ruling doesn’t expand their rights all that much.
Think of it this way:
- It’s always been true that a fabric design CAN be copyrighted.
- It’s always been true that a dress design can NOT be copyrighted.
All the Court said is that Varsity Brands’ copyrighted designs on the fabric of their uniforms are more like statement 1 (rather than statement 2) and the court should hold a trial to determine whether Star Athletica’s cheerleader uniforms infringe on Varsity Brand’s copyrights.
The ruling does NOT mean that the cut, shape, style, or fit of a piece of clothing can be protected through copyright. Here’s what the court said:
“[T]he only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. [Varsity Brands has] no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions . . .. They may prohibit only the reproduction of the surface designs in any tangible medium of expression—a uniform or otherwise.”
Clothing designers are going to have to continue to rely primarily on the strength of their brands, the quality of their goods, and the loyalty of their customers.