Pittsburgh-area company Eat ‘n Park Hospitality Group has sued Crumb Corps LLC of Plano, Texas, for allegedly infringing Eat ‘n Park’s “Smiley Cookie®,” which is (you guessed it) a sugar cookie decorated with icing to form a “smiley-face.”

Here’s what Eat ‘n Park’s “Smiley Cookie®” looks like:

And here’s the allegedly infringing cookie, which, as the picture indicates, are most often seen traveling in packs:

So is this infringement?

First, it’s important to note that the “Smiley Cookie®” is the subject of a federal trademark registration.  Eat ‘n Park has been diligent about filing the necessary paperwork with the United States Patent and Trademark Office (USPTO).  The mark was initially refused as being merely “ornamental,” but Eat n’ Park eventually obtained registration and has timely filed renewals.

So, assuming that the “Smiley Cookie®” is a valid trademark, which we must, given the fact that it is a registered mark, does the Crumb Corps cookie infringe upon this mark?

Prof. Michael Madison mentions the presence of a nose in the former and the absence of a nose in the latter as a factor that might lessen the likelihood of confusion here.

Crumb Corps might try to make the argument that the channels of trade (one of the likelihood of confusion factors) are different here.  Eat ‘n Park is a restaurant chain that operates throughout Western Pennsylvania, Ohio, and West Virginia.   Crumb Corps sells sells its cookies online, via a catalog, and at 200 retail outlets.

Eat ‘n Park can come back on this argument by citing the fact that it currently sells cookies throughout the country on its website, smileycookie.com, a factor that creates a significant overlap in the channels of trade here.

For a more thorough analysis of the likelihood of confusion factors (in the context of a different Eat ‘n Park lawsuit), check out Ryan Gile’s post from a couple of years back.