One Tough Cookie Picks a Trademark Infringement Fight; Will Gail Dosik or the Food Network be the First to Crumble?

Chew on this . . . Gail Dosik, a baker in Greenwich Village, New York, owner of the One Tough Cookie bakery and trademark ONE TOUGH COOKIE for cakes is suing Scripps Network & the Television Food Network (both will be referred to as Food Network in this post) to prevent their July release of a bakery-themed reality show called “Tough Cookies.”  On May 31, Gail and her company, One Tough Cookie, Inc. filed a trademark infringement lawsuit against Food Network in US District Court for the Southern District of New York seeking monetary and injunctive relief for:

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trademark infringement,

false deception of origin,

trademark dilution,

deceptive acts and practices,

unfair competition, and

violations of New York state statutory and common law.

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The Complaint continues . . .
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Plaintiff Gail Dosik and her company One Tough Cookie, Inc. are nationally known as a specialty baker and bakery concentrating in “edible art” in the form of cakes, cookies, and other pastries and baked goods.

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Apparently, Ms. Dosik has been profiled in connection with her ONE TOUGH COOKIE brand on programming like MSNBC, the TODAY Show, Fox Business, The Martha Stewart Show, and CNN’s Eatocracy, as well as in publications like The Wall Street Journal, the New York Daily News and the Washington Post.  Not bad for a New York City baker.

The suit states that One Tough Cookie learned of the soon-to-be “Tough Cookies” reality show in mid-April.  She first informed Food Network of her trademark rights in early May and then sent a formal cease & desist letter to Food Network in mid-May, “requesting that defendants cease and desist from their unauthorized use of the ONE TOUGH COOKIE® Mark or any mark that is similar to the ONE TOUGH COOKIE® Mark, including the mark “Tough Cookies” in connection with their television reality cooking series.”  Food Network apparently rejected this request and here we are.

One Tough Cookie claims the Food Network:

[framed_box] . . . infringed plaintiffs’ ONE TOUGH COOKIE® Mark in interstate commerce by various acts, including producing and promoting, and planning to air their “Tough Cookies” television reality cooking series about a female owned and operated specialty bakery in the Northeast. [/framed_box]

She further claims she has encountered” . . . and will continue to encounter, instances of actual confusion where consumers associate defendants’ television series and bakery with plaintiffs’ bakery, products, website, and blog.”  (As with the Mike Tyson tattoo case, is this really going to hurt One Tough Cookie’s business?  Or does it seem more likely to increase it?!).

As my colleague and Likelihood of Confusion blog meister, Ron Coleman, told Reuters last week, “Dosik is unlikely to succeed because TOUGH COOKIE is not a strong trademark and concern for free speech would make most judges reluctant to ban a show before it aired.”  I’m inclined to agree, and not just cause Ron’s one of my trademark heroes!

What I most want to know, is what does Cookie Monster think about all this?  I mean isn’t he the true prior owner:

Kidding aside, no matter how tough One Tough Cookie is, I suspect once her preliminary injunction is denied she will get back to baking and basking in the additional, if misdirected, attention.