Completely Cronuts

By Brand Heeler

Identifying holes in donut brand protection

Exciting food brand-related news reveals that London’s first official Cronut bakery is to open shortly. We’re big fans, from both a gastronomic and a legal point of view, of the Cronut – a flaky, hybridised croissant-doughnut pastry invented by New York baker, Dominique Ansel. The baking process requires the pastry to be fried, sugared, filled, glazed and then thoroughly, thoroughly, eaten. Cronuts have become legends in many people’s lunchtimes, with queues snaking for several blocks outside Ansel’s Manhattan bakery in all weathers, and reportedly from as early as 5.30am for an 8 o’clock opening.

Although the recipe is allegedly secret (as so many great recipes seem to be), the real innovation of the Cronut is not so much the pastry itself – similar comestibles are widely enjoyed across the known world – nor its portmanteau name (qv: ‘dosant’, ‘cruffin’, ‘duffin’, ‘monut’ etc etc, ad literally nauseam if you tried to sample them all).

No, the real glory of a Cronut is of course its history as a registered trade mark. The US Patent and Trademark Office first granted Ansel a registration for CRONUT in January 2014, covering ‘bakery goods’ among other things. In February, however, it announced that the registration had been issued inadvertently, before time to oppose the application had expired. As a result, the registration was cancelled and the application was reinstated as ‘pending’. This caused a bit of a stir in trade mark circles – usually once a registration is granted, it’s granted and that’s that. We’re not aware of any other applications in any other jurisdictions which have been ‘unregistered’ in such a manner.

This false start gave several parties the opportunity to file oppositions (We’re tickled to note that law firms on the record included bakerlaw.com and The Cook Law Group – how satisfying!) Claims were advanced that CRONUT, variously, was a descriptive term, was conflicted by a prior application for fish croquettes, and had been applied for in respect of an over-wide selection of goods.

Although the USPTO kept its counsel on whether it prefers sweet pastries to fishy ones, it eventually allowed CRONUT to be (re)registered, at which point Mr Ansel was free to roll out international registration. By this stage, he also had to get down to some serious enforcement against numerous competing products which had, in the meantime, launched on a salivating market: #NotACronuts, Croi-nuts, Creaux-nuts, Kronuts, Croughnuts… we could go on. And there were (and remain) several conflicting trade marks and applications to deal with. All of which shows how difficult it can be to effectively monopolise a good name, especially one which invites so many homophonic near-misses. And it proves the age-old adage that imitation is the sincerest form of flattery.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.

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