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Trademarks and Not the Cupcake Class

Down in Alabama, there is a hard-working baker who has been accused of producing illegal pastries.  By the time this post hits the Internet, everyone may have made nice, and the pastries may again be on their way to waiting mouths and stomachs. But the tale reminds me yet again of the fraught relationship between class and cupcakes.  Or creativity and cooking.  Or something.

Years ago, when I will still blogging about Pittsburgh, I foisted a meme on Pittsburghers centered on the idea of the (fictional) “Cupcake Class.”  This was a parody of Rich Florida’s “Creative Class,” grounded in an earlier ill-considered post about flavored custard.  (I was, for a time, unaware that in Pittsburgh, authenticity requires adhering to the premise that custard comes in only one flavor.) My Cupcake Class thesis was that Pittsburgh, as a still-in-recovery post-industrial region, needed to attract consumers with the money and taste that disposed them to dropping $4 on an overpriced cupcake. Here’s one such post.  (Search for “Cupcake Class” for several others.)  It’s a joke, OK? – although in the end I turned it into a serious comment about small business and entrepreneurship.  Pittsburgh was late to the high-priced cupcake fad, but the emergence of a cupcake economy in Pittsburgh signaled a re-booting of its entrepreneurial economy.  Cupcakes come, cupcakes go. That’s the way that these things work.

Cupcakes turn out to be a barometer of class and status in all kinds of way.  That, for better or worse, is the lesson experienced recently by Mary Cesar, founder and proprietor of Mary’s Cakes and Pastries, in Northport, Alabama. 

As the Chronicle of Higher Education reported (following reports at WBRC, and by Mary Cesar herself), the folks at the University of Alabama sent Mary’s Cakes and Pastries a cease-and-desist letter for the unauthorized reproduction of University of Alabama trademarks on Mary’s baked goods. 

Zut alors!  But of course this is no laughing matter, to Mary or to her customers (including, of course, many good folks at the University of Alabama).

Trademark lawyers know all too well, from following the saga of Daniel Moore, that the University of Alabama takes a very dim view of people who use protected Alabama things in their creative endeavors.  To the University of Alabama, it seems, paying a few extra pennies per pastry is the price that Tide fans everywhere should have to endure to enjoy a cupcake that says “Roll Tide.”  And a zealous enforcement program is arguably required to avoid loss of the University’s rights in the “Alabama” family of marks.  (I’ll pause here to emphasize the “arguably.”  The idea that the trademark owner was somehow required to threaten Mary’s Cakes is a canard that, I believe, will never go away.  “Policing” a mark is a good idea; recklessly threatening people who use your mark is not.) 

One could imagine that the Alabama counsel’s office is worried about counterfeit cupcakes, or about sub-standard cupcakes.  I don’t know much about the tastes of Crimson Tide fans, but it wouldn’t surprise me to learn that in Alabama, quality cupcakes are a big deal, and the University of Alabama wants to be sure that “Alabama” is associated only with cupcakes that meet its (and its fans’) exacting standards.  Has the Cupcake Class come to Alabama, and is the University advancing its claims?

Perhaps not. One could also imagine that the University of Alabama just wants a piece of the action. Tide fans may be perfectly capable of determining for themselves that the quality of their cupcakes may be safely entrusted to Mary Cesar and her rivals and colleagues. 

Given the fact that Alabama’s trademark claims against Daniel Moore were resolved in Moore’s favor largely on the ground that his paintings were expressive, it seems to me that Mary Cesar’s best defense here — assuming that she hasn’t already moved beyond this — is to borrow the argument that baking is, itself, a form of creative expression.  It is one of the culinary arts, after all, and as Chris Buccafusco has argued, its practitioners produce things that are no less original and creative than works of literature and painting.  That doesn’t mean that cupcakes should be copyrightable, any more than that they should be the subject of aggressive trademark claims.  But lots of things are expressive even they aren’t subject to IP protection.

If we are what we eat (and that’s the point of the script “A” appearing on a cupcake, no?), then the University may be biting off more than it wants to chew.