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Jun 28 2013

To the Cronut Come the Trolls!

In May of this year, Chef Dominique Ansel of Dominque Ansel Bakery in Manhattan, came up with a new product that combined the laminated dough of a croissant with the shape and sweetness of a donut. He came up with and trademarked a catchy name for the item: The Cronut. Like so many things in NY, it became the “it” item of the moment and now you have to wait two hours in line at around 7AM to get a Cronut. Would I ever do that? No, but kudos to Chef Dominique for coming up with the idea and for the rampant success of it.

Today, on his FB page he posted an article about the hassles the Cronut has created from competitors and haters who are apparently bombarding Chef accusing him all kinds of misdeeds including trying to grab credit for inventing the croissant. In the post the Bakery states:

It has sadly come to our attention today that there is a barrage misinformation being wrongfully spread about the nature of our Cronut™ trademark along with malicious attacks against our Chef. We felt it was important to take this time to clarify important information up front to you.
Dominique Ansel Bakery (as a business) trademarked the term Cronut™ in May of this year as a protective measure against the type of bullying that is taking place now. It is important to note that Chef Dominique Ansel himself does not actively manage the protection of this trademark, and spends the majority of his time in the kitchen or personally serving guests. On top of that, Chef has never claimed he invented all fried-laminated dough recipes nor stated he was the first to ever fry laminated dough.
The term Cronut™ is a name associated with a specific product offered at the bakery and undeniably linked to the Chef’s reputation as well as the bakery’s name. Our desire to protect the name is not an attempt to claim or take credit for all cooking methods associated with the recipe or all croissant and doughnut products in general. Instead, it offers the bakery and Chef protection against un-granted affiliations with the bakery or confusion from customers.

What these people do not understand is that Chef came up with word for this item as well as the item itself. He did not apply for a design patent for the product, but merely for a trademark for the name Cronut. A trademark merely identifies the source of its product so Chef is trying to tell everyone that Cronut is a specific product created by the Dominique Ansel bakery and which identifies the product as having come from that bakery. Some other bakery down the road can make its own combo of croissant and donut, they just will have to call it something else. Chef would be wise to continue to vigorously promote the product under that name to help it develop an even stronger reputation of being his product.

There are generally three types of trademarks:
1. Fanciful These are strongest – Polaroid, Exxon, for example. These are words that are made up especially for a brand.
Only way to lose trademark protection on these is if they become too popular and actually become nouns or verbs – BandAid, Xerox, YoYo, etc.
2. Suggestive – Next strongest. These suggest qualities which are desirable for a product, but do not actually describe them. “7-Eleven” for a convenience store, “Seventeen” for a teen magazine, or “Best Buy” for cheap electronics.
3. Descriptive – usually geographical or not unique at all using common English words – “Fast Automotive Repair” “New York Bagels.” The only way to protect these is if they have secondary meaning or there is actual or likelihood of confusion among consumers.
“Cronut” is somewhere between Fanciful and Suggestive in my opinion though I have not researched how the USPTO would treat it.

But if Chef Dominique truly wants the name all to his own, he already has his plate full. I just searched the US Patent and Trademark Office’s website and found that on June 10, 2013 a guy named Stephen Foung in Needham Massachusetts filed a trademark application for a retail bakery called “The Cronut Hole.” And one week later, a Najat Kaanache of Irving Texas applied for a trademark for the term “Cronuts.” Chef would be wise to send cease and desist letters to both of these applicants letting him know that he may take Cronuts national and they are infringing on his Cronut trademark.

Business owners just want to get to the business at hand; they want to spend their energy on developing new successful ideas to help their businesses grow. It’s hard enough to come up with a new idea (especially in NY food circles) that gets this kind of viral attention. It’s that much harder to do so when you have to keep the wolves and trolls at bay who are trying to capitalize on what you started.

4 comments

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  1. merlin

    It’s a nice bakery if you’ve never been. The guy doesn’t need or warrant personal attacks nor legal headaches for doing something most of us have never done. Come up with something interesting.

    Aside, may I ask a question not different than I might ask if I were hiring C+C as counsel.

    NY Law school + clerking + City of NY Corp Counsel office. It doesn’t really scream IP lawyer.

    Who trained you/where in IP ?

    1. Oscar Michelen

      I have been to the bakery and I agree with your input. As for me, you are correct that looking at my prior experience does not scream IP, but it does scream litigator. In less than three years out of law school I was the City of New York’s lead trial attorney, representing the City in claims over $1MM (which was real money back then). I then left and became a litigator in a small litigation boutique where I continued to handle many hihg profile cases; I continue in that vein in Cuomo LLC. About a 15 years ago, several of my prior litigation clients came to me for a few IP litigation matters because of the quality of my work and the exorbitant fees chaeregd for IP litigation by the “white shoe” firms they were employing. Once you know how to litigate at the level I was used to, learning the substantive law and factual issues surrounding a specific area of law is not that difficult. CLE courses along the way helped tremendously as did the ability to tap experts in the field on a case by case basis when needed. The IP part of my practice has grown sinc ethen when I began reaching out for that work with confidence that I could perform. My first year of law school I had the luck to have David Rice as my Civil Procedure Professor. Professor Rice’s mantra was always “learn to litigate first.” It was simialrly difficult job market foir lawyers then as it is now and every oportunity he had as we discussed cases, he would remind us that the law we were reading was made by litigators not “desk guys” as he called them. “What’s an anti-trust lawyer?,” he woud ask, “It’s a litigator with an anti-trust case.” “What’s a medical malpratice lawyer? That’s a litigator with a medmal case.” His point was that you can always learn the law on a topic, but you cannot just learn to litigate that easily. I have taken that to heart and it has been profoundly influential in my career. To this day, much of my business comes from lawyers who don’t litigate but are transactional experts in their field. I am now proud to say that I have established myself as sufficiently well-versed in IP law to have served as an expert witness in several IP litigation matters.

  2. Sammy Castillo

    Though the menu is decidedly French, Ansel doesn’t want to limit himself by those terms, noting that he is offering imaginative variations on a number of European and American bakery products, such as the Paris-NY, a twist on the Paris-Brest made from choux pastry that is filled with praline cream; or the cotton-soft cheesecake, which uses both cream cheese and ricotta in the base and is lightly brûléed on top for crunch.

  3. layzy22

    What the fuck does all that fancy gibberish mean. I bet if I put you out in the middle of a forest you would turn to your law book for survival.

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