So can a cake design result in intellectual property right?
Yes, according to Terry Miller, partner at Gardee recently sat down with IPWatchdog for an interview. Typically patents protect inventions of new tangible things, copyright protect artistic work expression and trademark protects a name or symbol that identifies a source of goods and service. When it comes to baking, under IP law a recipe may be patented if it qualifies a s a new invention. Per the Unites States Patent and Trademark office food products can be patented. , when the combination of ingredients used or the way they are processed result in a food product totally unexpected.
Excluding any question regrading the rare patentability of cake recipe, cake design, under certain circumstances may be protected under law of copyright and trademark. Specifically for copyright 17 USC, 101 provides the relevant definition of pictorial, graphic, or sculptural work. which ,may include two-dimensional or three dimensional work related to the cake design. Moreover it is simply stated that if the design incorporated original picture, graphic, or sculptural feature that can be identified separately from and are capable of existing independently of the utilitarian aspects of cake itself, than such a design is subject to copyright protection. Thus if the appearance of the cake’s two dimensional or three dimensional decoration for example, are artistic themselves and are capable of being recognized artistically apart from function of the cake then copyright protection is available.
About the Trademark
Talking about thus trademark this is more of the rarity of cake design, However for instance, if a company were to use a unique shape and perhaps design in decoration of the cakes, that becomes known by public as a symbol or source identifier of company making cakes, then decorative design could qualify as a trademark. According to Miller, an example of this is the famous marshmallow Peep candy that is popular among consumers, especially during the Easter holiday season. The exact shape of the marshmallow Peep has been a registered trademark of its maker, Just Born, Inc., since 1998.
Today baked good design of all types do count as intellectual property according to miller for some reason mentioned as above. For example if a baker creates an original two dimensional portrait of himself out of frosting on a cake, then the portrait is an original work of authorship that is fixed in a tangible medium and are capable of being separated from the utilitarian function of cake .In terms of the case with one of Trump’s cake, without knowing the specifics as to whether permission is granted and excluding any defense under fair use a violation of copyright law would be of serious concern.
There have also been a few cases where confectionery trademark was litigated. In fact, per Quartz, in 2015, Disney, Sanrio (the makers of Hello Kitty), and other plaintiffs sued Michigan resident George Wilson in federal court in California for selling frosting designs they said infringed on their trademarks. The case did not get very far, however, because the defendant had a pending bankruptcy case and the court stayed the IP case pending resolution of the bankruptcy case.
So, how can bakers protect themselves from copyright infringement?
While it’s permissible to use prior works as inspiration, it’s a fine line when inspiration crosses over into copying the prior work or creating a derivative of the prior work, both of which are prohibited under the copyright laws, Miller had said.