The Cheese Zombie Trademark Battle Has Come To An End

January 18, 2017 14:00 pm · 36 comments

cheese_zombie

The Cheese Zombie war in Concord has come to an end.

For those following the Cheese Zombie trademark battle, Patty’s Original Cheese Zombies in Concord prevailed.

The United States Trademark Office has ruled that the phrase “Cheese Zombies” may not be used exclusively by any company as a trademark.  Anyone making those delicious cheese zombies is free to call them what they are – cheese zombies.

Over fifty years ago, Mount Diablo Unified School District cafeteria workers created a soft baked brunch treat utilizing bread dough and government commodity cheese. It was affectionately called a Cheese Zombie.  Why it was called a Cheese Zombie is debatable but the name stuck. The creation of  the Cheese Zombie is credited to Helen Ballock and Decla Phillips in the 1960’s.

Eric Giacobazzi, a 2000 graduate of Northgate High School, had obtained a trademark on the phrase “Cheese Zombies” in 2009.  In 2013 Patty May (Bakers Trainer for MDUSD) and her son Robert opened “Patty’s Original Cheese Zombies” in Concord’s Dana Plaza.  Shortly after opening their business they were notified by Giacobazzi that he owned the name.  Patty and Rob retained Pete Tormey, an attorney who specializes in patents and trademarks to fight the mark in the Trademark Office.

Martha Riley, a former principal at Northgate high School, testified on behalf of Patty’s describing a cheese zombie as a “wonderful puff of pastry around this nice gooey little narrow thing of cheese.” In addition to her testimony, attorney Tormey, showed the Trademark Office dozens of newspaper articles, recipes, school menus, even Helen Ballock’s obituary, as evidence that the phrase “cheese zombies” has been well-known for many years.

The Trademark Office ruled that the term “cheese zombies” is merely descriptive said Tormey. The term conveys an idea of characteristics of the goods. That is, that they are a type of baked bread product filled with cheese and the phrase cheese zombies merely describes them. “A term that is merely descriptive can’t function as a trademark” explains Tormey, “because trademarks are used to identify a unique source of a product or service.”

Tormey coaches clients to be creative when picking a trademark because a good trademark is critical to building a successful brand, while a wrong trademark can have you stumbling in litigation like a Zombie for years.

Story – Courtesy of David King – Diablo Gazette

PC January 18, 2017 at 2:16 PM

Glad to see Patty May prevail over some grasping nobody out to cash in on someone else’s idea. I wonder what the costs were for this “trademark” case.

Is This Thing On? January 18, 2017 at 2:21 PM

So, will Eric be prosecuted for being a greedy SOB? We need the death penalty for people who do nothing but try to rip of others – like the jack-up-the-drug-price creep Martin Shkreli

Concordejet January 18, 2017 at 2:26 PM

Interesting name

Anne R. Keyes January 18, 2017 at 2:28 PM

Yet another cautionary tale illuminating the need for patent and trademark reform.

139Disney January 18, 2017 at 2:31 PM

The only lunch I would eat at Northgate ’86! So glad they won, sad they had to go through this.

GregTheElder January 18, 2017 at 2:33 PM

I used to down at least one a day in middle school

lunch lady January 18, 2017 at 2:53 PM

Congratulations to Patty! She taught me how to make the best cheese zombies. I have a great respect for her, so glad that she prevailed.

Cowellian January 18, 2017 at 3:06 PM

Justice!

And tasty justice, at that.

Schmee January 18, 2017 at 3:18 PM

God I hate lawyers

Irish Girl Here January 18, 2017 at 3:49 PM

This is great news. I was pretty sure it would go down this way and am glad to see the term “cheese zombie” considered a descriptive word/term.

MadMom January 18, 2017 at 4:04 PM

So glad it all worked out. Party’s zombies are delicious!

Brentwood zombie lover January 18, 2017 at 4:15 PM

Glad it ended up this way. I have to admit, when I read the original article, it caused me to drive out from Brentwood just to find this place. Enjoyed my lunch of two zombies that day. I just had to know what the fuss was about. Congrats!

Silva January 18, 2017 at 4:29 PM

Yay!!!

Nick January 18, 2017 at 4:32 PM

I was eating cheese zombies in high school before Eric could walk. I could for for one now. For less than fifty cents.

Nokeem January 18, 2017 at 4:45 PM

Finally! A little justice served up piping hot. I am disgusted by these trademark patent sue-happy companies and people trying to make money off of other people’s backs. So glad you won!!! Well except for the monstrous attorneys fees you likely had to pay in order to fight this off.
It still must be such a relief for it finally to be over.

WC resident January 18, 2017 at 4:45 PM

Concord California, the land of the Cheese Zombies (and lawyers).

However, Google also shows the Zombies also showed up in Yakima, WA area in the late 1950s or early 1960s.

Average Joe January 18, 2017 at 4:58 PM

Where is Eric’s Cheese Zombie shop? I have not been there yet. Patty’s is fantastic. We had them at Alhambra as well. 80,81,82 and 83. Almost everyday with a orange juice. Good times.

Sooloo January 18, 2017 at 5:00 PM

Thank God there was a GOOD lawyer to defend Patty.

Atticus Thraxx January 18, 2017 at 5:05 PM

Should call them metabolic disease vector pastries.

The Zombies January 18, 2017 at 5:45 PM

Tell Eric NO, NO, NO….No, No , No, no, no,no, NO.

Little Ronnie January 18, 2017 at 5:59 PM

I’m glad it’s settled, I like to get cheese zombies for my son before he pitches, Pete likes them too. Word to my homie Cris!

Melody Herman January 18, 2017 at 6:11 PM

Congrats to Patty! This schmuck should pay all of her court fees/attorney fees and then be sanctioned for shenanigans.

Wage Slave January 18, 2017 at 7:32 PM

How do you trademark or patent a term already in common use? I used to get these at Las Lomas in the 90s. We had ones with cheese and breakfast sausage…

Dude should be forced to pay the defendants’ entire legal bill.

Gabe Athouse January 18, 2017 at 7:50 PM

When I think zombie I don’t think breakfast, I think fruitvale Ave at 1am on a Friday night. Cris is such a good boy

Tiny Harp January 18, 2017 at 8:26 PM

That Eric creep is a lousy human being…. I have zero respect for someone who tries to cash in on the work of others. Hooray for Patty! They should make that jerk pay all the legal costs.

Dr. Jellyfinger January 18, 2017 at 9:14 PM

The Breakfast Zombie is pretty good but I’d be going there more often if they’d offer a BBQ Pork Zombie (like the Chinese Pork Bun)
NOM!

Concord Guy January 18, 2017 at 9:22 PM

Nutrition Value=0

Silva January 18, 2017 at 11:21 PM

I bought one once at CVHS and almost burned my tongue off on the cheese.

Cindy January 19, 2017 at 2:02 AM

I don’t know Eric but I’m going to thank him hers. He was doing what no one else thought to do… trademark the name, I’m sure in keeping it Concord/WC tradition. I’m sure others that have thought to take recognition for the idea have stepped back as a result of his efforts.

HappyWife January 19, 2017 at 9:42 AM

I had a jalapeno Cheese Zombie for breakfast this morning.. yummy! I grew up in the South Bay, so only became aware of this Concord tradition in 2012. LOVE them!!

Justice for Helen and Decla! January 19, 2017 at 10:39 AM

I am glad the Patent and Trademark Office got it right! That was wrong for Eric to try and take credit for the creation of Cheese Zombies. Justice for the original inventors, Helen and Decla, has been served.

Ronnie McB January 19, 2017 at 11:39 AM

I really used to like to get cheese zombies in school. I rarely got to eat mine though due to a bully. Does anybody remember the kid who used to stand by the cafeteria and take our cheese zombies? Since I was extremely small for my age he really bullied me a lot, I think his name was Cris. I’d like to see him try it now, Pete has my back

anon January 19, 2017 at 12:23 PM

I had cheese zombies at CHS in the 60’s. I tried Patty’s soon after it opened, and they didn’t seem to be the same. Maybe my tastes have changed, but I didn’t care for it. I remember Peanut Butter zombies too. They don’t sell them due to peanut allergies these days.

It's 'Meme' is that you Ma? January 19, 2017 at 4:17 PM

“Tasty Pastries”.

These types of meals have been offered World wide for years – I mean like a thousand plus…

Let’s look to food network who have offered so many and various National versions for so many years again…

My favorite over the years has been the Polish Peroski – yet I will admit a good old pizza deep dish included is a version…

Stromboli, Calzone, Pot-sticker, Pork Bun, Chili Relienos, Chimichangas, Chongos Zamoranos a desert that could be stuffed and wrapped and so on…

What’s up with all the disagreement? A French good old Cream Puff…

And on and on…

Dim Sum any body; or the now popular like all the others, you name it.

Just be happy that you have something tasty to eat and drive on if you can…

Come on who can name for me that popular meat or other pastry that has the cooking freaks so up into it?

A Pasty and the others… Come on…

A – – – pizza pocket, and the other escapes me – an Empanada?

Delicious!!!

I wait for your answer(s)!

Love,
“Meme”.

Willis January 19, 2017 at 5:03 PM

I heard the cheese was left over from a government experiment. They created this cheese to give to the europeans to help them deal with the mass casualties and destruction of their cities by the Germans. This cheese contained a barbiturate, hence zombies.

Glad to see they were able to put this cheese to good use!

CG January 19, 2017 at 11:44 PM

Way to go, Think I will head in for a Cheese Zombie from Patti on Friday.

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