February 3rd, 2017

Does IP Law Protect Cake and Pastry Designs?

A chef who created a cake for President Obama's inauguration in 2013 recently tweeted a photograph showing two cakes. According to the chef, one was created for the Obama inauguration and the other was for an inaugural ball for President Trump. The Trump cake baker apparently admitted copying the Obama cake design (and stated the proceeds would be donated to a charity). So among the many legal questions raised by the new Trump administration, there lies an interesting IP question: can a baker, chef or restaurateur use intellectual property law to protect a cake or pastry design?

The short and sweet answer is yes. Protection may be available for cake and other baked goods designs in the US under copyright, trademark, trade secret and/or design patent laws. The ingredients for success in obtaining such protection — as well an invitation to our March 9th food, beverage and restaurant brand management event — follow below.

Copyright

Copyright protects creative original works of authorship including artistic works such as cake designs. To be protected, the cake design must include a minimum level of creativity. "Works of authorship" under the Copyright law  include, among other things, pictorial, graphic and sculptural works, which can include cake design or designs appearing on a cake, or both. In order to be protected, a design must be fixed in a tangible form. So an idea for a cake is not protectable — but the cake itself, or even a tangible drawing of a cake — can be. Activities which would infringe a valid copyright include copying and display of the protected work as well as the creation of new works which include aspects of the original, protected work. Reminder: registration is not required for copyright (but it is a prerequisite to an infringement suit and can impact your recovery).

Trademark

Trademark law — specifically "trade dress" protection — also protects baked goods designs. Product features such as color, size, shape, and graphics all come under the umbrella of trade dress. It's important to distinguish individual design elements on a product from overall product designs. While graphics applied to a cake, such as an intricate artistic design, can be inherently distinctive and therefore protectable, product designs themselves, such as the shape of a cake, require an additional showing of "secondary meaning" or proof that consumers associate the product's shape with a particular source, such as a chef or bakery. Advertising, sales data, and press coverage can all serve as evidence that  a particular design has become associated with the source of the cake.

Trade Secret

Trade secret law can protect the proprietary steps behind a cake design. While the appearance of a cake is not protectable as a trade secret once it is disclosed to the public, aspects which are not publicly perceptible, such as a combination of ingredients that provide a competitive edge over competitors, may be protectable, assuming it has been maintained in confidence.

Design Patent

Finally, design patents have been used to protect cake designs. Design patents protect new, original, ornamental designs on "articles of manufacture." In order to qualify for protection, the design must not only differ from all other product designs but also must not have been obvious to others in the field.

If you have any questions about how to protect cake and pastry designs, or about other trademark and brand management issues, please contact Catherine Farrelly at (212) 826 5579 or cfarrelly@fkks.com, or any other member of the Frankfurt Kurnit Trademark & Brand Management Group.

Event Invitation: Please join us for Ingredients for Success: Protecting, Growing and Advertising Your Restaurant, Food and Beverage Brands, on March 9th at our New York offices. For more details and to RSVP please click here.