Well, it’s over. The most wonderful faux-holiday of the year, National Donut Day, has come to a delicious close. Now that the powdered sugar has settled, let’s take a moment to loosen our belts and reflect on the biggest triumph of this faux-holiday season, the cronut. Part donut, part croissant, all kinds of crazy delicious, the cronut not only stirred all of NYC into a gluttonous frenzy, it also stirred up quite a bit of controversy. May we present to you the cautionary tale of the cronut, with two valuable lessons brands should know when it comes to defending trademarks and intellectual property? Lesson 1: Being first to market is a blessing and a curse
There’s a lot of debate on who was first to market with the cronut. Most media outlets covering Cronut Watch 2013 attribute the innovation to Dominique Ansel, a humble bakery in Greenwich Village. However, Najat Kaanache, chef at Private Social restaurant in Dallas, Texas, has recently taken to twitter to stake her claim as the true inventor of the cronut. While that social media debate rages, there’s the emergence of the knock-off versions calling themselves doissants, crowbars, or even fauxnuts, all trying to prove that a cronut by any other name can be just as sweet. All of this controversy proves that it’s not only a blessing to be first to market, but it’s also kind of a curse.
First-to-market innovators bear the responsibility for educating consumers. Which is what makes descriptive names like “cronut” so appealing; they help clarify what the heck this flaky fried concoction really is without a lot of additional education. The problem is that these names quickly become generic, and people start using them to describe the category rather than a specific brand.
Let’s think back to the SillyBand craze that captured our imagination a couple of years ago. “Silly bands” is the descriptor we all use to describe those colorful, adorably shaped rubber bands, but “SillyBand” is also a trademark. While the trademark may force other brands to call themselves FunBand or CrazyBand, it doesn’t force consumers not to call them “silly bands.” And that’s how it happens, the gradual process whereby brands lose their trademarks. It’s a process called “genericide,” where a term no longer stands for a brand but for the category at large. And trademark law is clear—no one can own a generic term. If consumers use a company’s trademarks descriptively for too long, they’ll lose the right to carry the trademark at all. Zipper, Aspirin, Kerosene, Escalator are all victims of genericide. And it looks like the cronut is well on its way to meeting a similar fate.
First-to-market brands that successfully avoid genericide do one expensive but worthwhile task —they invest in two names, not just one. They create an industry category descriptor and a brand name, and continuously message to consumers that they are very different things. At launch, Tivo invested as much in the DVR category name as it did in its own brand name. Same with Intel and microprocessor; Google with search engine; RollerBlade with the in-line skate. It’s a headache, but them’s the breaks when it comes to being first to market.
Lesson 2: A trademark is not a patent
And finally, to close out the conversation on cronuts and branding best practices, let’s offer a quick point of clarification. A trademark is not a patent. While they live in the same intellectual property world, they offer two different kinds of protection. A patent will prevent other brands from making the same product. In the case of a cronut, it would prevent other brands from making any donut-meets-croissant hybrid at all. A trademark will prevent other brands from using the same name for their product. In the case of a cronut, that’s why we see the emergence of doissants and fauxnuts, because Dominique Ansel’s innovation is protected by a trademark, not a patent. That said, patents are very hard to get, and it may be the case that the cronut doesn’t qualify for one. But for any innovation that does qualify, it’s always a good idea to seek trademark and patent protection.
In the meantime, the countdown to the next National Donut Day begins (for those counting we have a little under 360 more days to go).