Crompouce (®?) - A Pink Sensation

Last week, the new hit pastry ‘Crompouce’ made headlines in the Netherlands, particularly regarding its trademark aspects.

The Crompouce pastry is a croissant mixed with the traditional Dutch tompouce (a pastry with pink icing and vanilla cream filling). Crompouce is a huge success. Now, the creator of the pastry is threatening alleged infringers as the company has registered the trademark.

Several colleagues have been interviewed on the matter. Can the bakery take action or not? Let’s delve deeper.

Trademark of Crompouce - descriptive or not?

One of the interviewed attorneys argued that the Crompouce trademark is descriptive, as it combines 'Croissant' and ‘Tompouce'.

Crompouce is a new word. Case law indicates that the mere novelty of a word doesn't inherently grant it distinctive character as a trademark. A word is not dinstinctive when its meaning is immediately apparent. This was not the case at the time of the trademark application of Crompouce, the 'assessment moment' for distinctiveness. The combination of words in Crompouce is crafted in a way that the underlying words are not immediately evident. Hence, we consider the Crompouce trademark distinctive, a view also upheld by the Benelux trademark authority that accepted the mark.

Is Crompouce a generic term?

Another question arises: has the trademark become a generic term for the pink pastry? Yes, claims the interviewed attorney, citing examples like linoleum and Jacuzzi. However, it's worth noting that Jacuzzi still is a valid trademark. While people will perceive Jacuzzi as a hot tub, the company actively prevents misuse. This example highlights the nuance: a trademark becoming a generic term depends on the actions or inactions of the trademark holder.

Does this widespread generic use pose a threat to the bakery's trademark rights? This is the case, as the name Crompouce seems to be on its way to becoming a generic term. The bakery must actively combat any misuse of its name as a generic term. If the bakery can demonstrate proactive measures, its trademark rights might endure.

For an entirely new product, our advice is always to consider a generic term alongside your trademark. People naturally want to refer to a new product. If there is no generic term available, they resort to the trademark. As a trademark holder, avoiding this scenario is crucial.

Design rights

Finally, a staff member of the Benelux Trademarks office hinted at the bakery registering the design of the pastry as a design. A design must be new, and its overall impression must differ from existing designs. However, during the application, these requirements are not assessed by the office.

A different bakery claims to have made this pastry for 20 years. If true and the pastry looks the same, the design registration might be invalidated.

So, can no one use the name Crompouce?

It depends on the bakery's efforts. If the bakery actively fights against misuse and can prove this in a possible lawsuit, especially if the ‘generic term’ argument arises, their claim to trademark rights might succeed, prohibiting others from using this trademark. However, it is wise for the bakery to swiftly introduce a generic term that everyone can use, such as 'tompoucecroissant'.

This does not necessarily mean that no one can make Crompouce pastries anymore. The idea of the pastry seems quite common and not protected by copyright. Yet, time will tell.