Bagley wins case about design of a cookie

By Estudio Chaloupka

Bagley, owner of the Sonrisas cookies, sued Dilexis for trademark infrigement stating that their Dale Alegría cookies imitated the design of Sonrisas: a smiley face present both in the package and in the cookie over which Bagley claimed exclusive rights.

The plaintiff asked for the removal of the Dale Alegría trademark while Dilexis argued that Bagley did not had exclusive rights over the design because of its common use on products from class 30 of the Nice Classification: coffee, tea, cocoa, bread, pastry and confectionery, among others.

Although the first instance ruling stated both brands weren´t confusingly similar, it ordered Dilexis to cease the use of the figurative trademark because Bagley had exclusive rights over it as no common use existed on Class 30.

In September the Court of Appeals confirmed the first instance ruling. “The smiley face of cookies Dale Alegria is identical to that of Sonrisas cookies. The original design of Bagley was imitated down to the smallest details by Dilexis”, the decision explained. It added that Bagley had registered the design of its cookies so therefore was entitled to all the rights and privileges granted by the Trademark Act, setting a damage compensation of U$S 17,000.