December 08, 2015

Starbucks and Momofuku IP Dispute Brewing Over Bagel Bombs

by Stites & Harbison, PLLC

After a bit of a blogging hiatus, I'm back! I was admittedly experiencing bloggers block, but quickly snapped out of it upon receipt of this lead feed from a friend that involved a little foodie research. A dispute between Momofuku Chef David Chang and Starbucks is brewing after Chang alleged that Starbucks copied recipes from Momofuku Milk Bar, his restaurant group's bakery. Last Friday, Chang let the dispute pour over to Twitter:

Chang Tweet

For those of you foodies out there, you know that Chang is referring to Milk Bar's cream cheese-stuffed Bagel Bombs and Starbucks's Bantam Bagel Balls.

Starbucks Bagel Balls

See the similarity? Starbucks's Bagel Balls come in three flavors;: Classic, Everybody's Favorite (the Everything), and French Toast. The Classic is filled with regular cream cheese; the Everything with veggie; and the French Toast with buttery, maple cream cheese. (Stop drooling.) No trademark confusion between Bagel Bomb and Bagel Balls, you ask? You might be surprised to learn that MomoIP LLC filed an application to federally register BAGEL BOMB. Starbucks must have prompted this filing, since it was filed on October 23, 2015, with a claimed first use date of the mark BAGEL BOMB on breads, bagels, and buns in 2007. The specimen submitted in connection with the filing is a photograph of the bagel bombs at the counter:

Bagel Bomb

Ironically, Chang tweeted that Starbucks should "pick on someone else." It looks like Starbucks has by use of the mark BAGEL BALLS. Momofuku's bombs aren't Starbucks's biggest trademark concern; a registration for BAGEL BALLS for use in connection with stuffed bagel dough has existed on the supplemental register since February 2014. Though BAGEL BALLS has initially been deemed descriptive by the USPTO and placed on the Supplemental Register, upon use of the mark to a sufficient extent that it has acquired secondary meaning, the mark will be granted registration on the Principal Register, with all the protections afforded by such registration. Just like registration on the Primary Register, a registration on the Supplemental Register entitles the owner to use a notice of federal trademark registration, gives the owner the right to bring a trademark infringement suit in federal court, and can be cited by a USPTO against a later-filed application to register a confusingly similar mark for related goods/services, even on the Principal Register.

Starbucks's newly released Toasted Graham Latte is also quite similar to Momofuku's Cereal Milk. This latte was apparently created to mimic the leftovers in your breakfast bowl. Let's not forget that the release of this hot beverage is in close proximity to Cereal Milk, which combined a doppio Stumptown espresso with a scoop of soft-serve. No trademark issues are brewing with the names of these beverages, and it's unlikely the similarity in products will pour over into an unfair competition allegation by Momofuku. Stay tuned to see this dispute heat up.

For those of you curious about Cereal Milk, check this out: