Can a decoration on a cupcake be a trademark?
The cupcake pictured to the right is the “9:30 Cupcake” from the Buzz Bakeshop in Alexandria, Virginia. No doubt the bakeshop is frequented by examiners from the U.S. Trademark Office just a few miles up the street. This particular cupcake was photographed a moment before it was eaten by Liz, a long-time reader of the Bee Blog. She wanted to know whether this cupcake is infringing on the trade dress of Hostess®.
It does look suspiciously like a Hostess® cupcake, because it has white loop-de-loops of icing on top of chocolate frosting.
Hostess originally produced its chocolate cupcake in 1919 and the squiggle was added in 1950.
Hostess Brands, LLC doesn’t have a trademark registration for the trade dress consisting of white loops on a chocolate cupcake. It does have a trademark registration for the words THE ORIGINAL SQUIGGLE.
Entenmann’s® also sells chocolate cupcakes with white squiggles.
Rubicon Bakers® takes a much more impressionistic turn on the white squiggle.
Here’s my theory: You can distinguish among the brands of chocolate cupcake by the number of loops on white frosting.
- If it has 7 loops, it’s a Hostess brand cupcake.
- If it has 6 loops, it’s a Buzz Bakeshop brand chocolate cupcake.
- If it has 4 loops, it’s definitely from Entenmann’s.
- If it’s open to interpretation, it’s from Rubicon Bakers.
The marketplace is wide open for a 5 loop brand. Any takers?*
Liz B. does it again with a great question and featured photo to boot. Thanks, Liz!
*Then there are Pop-Tarts® frosted chocolate cupcake toaster pastries, which frighten me more than I care to admit.