Pittsburgh-based restaurant icon Eat ‘n Park is in the news with a claim that a New York-based cookie company is infringing Eat ‘n Park’s trademark rights in the smiley cookie. Local broadcaster WTAE posted its story on the dispute on YouTube.
If this history of the smiley face is correct, then Eat ‘n Park may be biting off more than it can chew. The New Yorkers are using an image — a smiley face without a nose — that’s been in broad public use for many, many years, and that has nothing to do with the restaurant.
The name of the restaurant reminds me of this classic Onion article:
http://www.theonion.com/content/node/32182
Just because the image is commonly used by the public does not necessarily mean that a company such as Eat ‘n Park cannot claim trademark rights to the image with respect to their cookie products. Lots of trademarked names are commonly used by the public (think of Apple, for example, a very common word).
The question isn’t whether Eat ‘n Park has a valid mark. Clearly, it does. The question is whether that mark is infringed by use of an image that has been used widely and publicly for roughly four decades.
If the cookie company’s cookies had “noses,” this would be a different case.
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