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Cake under Intellectual Property Law

The term cake has a long history. The word itself is of viking origin, from the old Norse word kaka.

The ancient Greeks called cake ??????? (plakous), which was derived from the word for flat, ???????? (plakoeis). It was baked using flour mixed with eggs, milk, nuts, and honey. They also had a cake called satura, which was a flat heavy cake. During the Roman period, the name for cake became placenta which was derived from the Greek term. A placenta was bakedon a pastry base or inside a pastry case.
The Greeks invented beer as a leavener, frying fritters in olive oil and chessecakes using goat's milk. In ancient Rome, the basic bread dough was sometimes enriched with butter, eggs, and honey, which produced a sweet and cake-like baked good.

Early cakes in England were also essentially bread: the most obvious differences between a cake and bread were the round, flat shape of the cakes, and the cooking method, which turned cakes over once while cooking, while bread was left upright throughout the baking process.

Cake is a form of sweet food made from flour, sugar, flour and other ingredients, that is usually baked. In the oldest form cakes were modification of breads, but cakes now cover a wide range of preparations that can be simple or elaborate and share features with other desserts such as pastries, brownies, custards, meringues and pies.

Cake today has became very common. We cut cakes in any occasion and common who really needs any reason to cut cake? Because of rapid increase in cake industry, bakers really face issue regarding there designs being pirated or photo theft. Baking industry have increased tremendously.

Cake isn't usually a hot topic in the world of law, but at President Donald Trump's inauguration celebrations it became a huge matter of debate. President's cakes were created for the Salute to Armed Services Ball which was almost an exact copy of one made for the President Obama inauguration which was originally created by Duff Goldman. Later Duff Goldman, tweeted images of the two cakes, pointing out that he did not bake any cake for Mr. President's celebrations that particular year. The very next day, Terry Mac Isaac, owner of Buttercream Bakeshop, took credit for the Mr. President's cake on Instagram, telling The Washington Post that her client on the Trump team contacted the bakery with a photo looking for a copy. The baker initially tried to encourage use of the photo as inspiration, but ended up creating replica at the client's insistence.

Do cake designs result in intellectual property protection?

Yes, according to Terrell Miller. Typically, patents protect inventions of new tangible things, copyrights protect artistic expression, and trademarks protect a name or symbol that identifies the source of goods or services. When it comes baking, under federal IP law, a recipe may be patented if it qualifies as a new invention.

Excluding any questions regarding the rare patentability of a cake recipe, cake designs, under certain circumstances, may be protected under the laws of copyright and trademark. Specifically, for copyright provides the relevant definition of a sculptural work, which may include two-dimensional and three-dimensional works relevant to cake designs. For example, if a cake design includes works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned, then such cake design can be protected under copyright.

For instance, if a company were to use a unique shape and perhaps design in the decoration of its cakes, that becomes known by the public as a symbol or source identifier of the company making the 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 designs of all types do count as intellectual property, according to Miller, for the same reasons listed 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 capable of being separated from the utilitarian function of the cake. He said, In this case, it's simply original art with the medium being food coloring and frosting, instead of acrylic paints, on a cake, instead of a canvass.

In terms of the case with one of President Trump's cakes, without knowing the specifics, as to whether permission was granted, and excluding any defenses under fair use (17 USC 107), a violation of copyright law would be of serious concern.

There have also been a few cases where confectionary 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.

Copyright (or author's right) is a legal term used to describe the rights of that creators have over their literary and artistic works. Works covered by copyright range from books, music, designs, paintings, sculpture and films, to computer programs, database, advertisement, maps and technical drawings.

How can bakers protect themselves from copyright infringement?

Miller advised, 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 at President Donald Trump's inauguration celebrations earlier this year, cake became a huge matter of debate.

Can cake designs result in intellectual property protection?

Yes, according to Terrell Miller, partner at Gardere recently sat down with IPWatchdog for an exclusive interview. Typically, patents protect inventions of new tangible things, copyrights protect artistic expression, and trademarks protect a name or symbol that identifies the source of goods or services. When it comes baking, under federal IP law, a recipe may be patented if it qualifies as a new invention. Per The United States Patent and Trademark Office, food products can be patented when the combination of ingredients used, or the way they are processed, results in a food product totally unexpected.

Cake falls under class 30 which is classified under trademark.

Let us know what is illegal, unethical and perfectly okayunder Intellectual Property Law
  1. Trademark violation it is against law that depicts trademark. Did you know you cannot copy or create designs of characters such as Minions, Mickey Mouse, Donald Ducketc. without first getting permission from the trademark owner. But, There is one exception to this if you buypermission from trademark owner than its completely okay to create a design.
     
  2. Copyright infringement which includes photo theft it is against law to use someone's picture and portray it is yours. Your photos, mine photos (the designs which we use to create cake) are automatically protected under copyright. Even if there is no watermark or link is broken your photo is copyright.
     
  3. Design piracy believe it or not, but copying others design without their permission is also an act which leads to copyright infringement. If your idea of design is identical or nearly identical to original and the original is exceptionally unique than there is no question about it. If your version is derivative that means kind of similar and for which you are using it for educational purposes (for your learning purpose) and not posting it online that is totally fine.
     
  4. Design you learn to pay when you pay money for a book or instruction you pay for lesson not for ownership of copyright. Content and course they are still protected under the instructors name. Same goes with pictures and original cake designs.
     
  5. Mashups does not indulge to copyright.

Can our Recipes protected under IP?

Your mother creates amazing and delicious recipes. On one fine evening your friends visit you and after tasting recipe of your mothers they go super crazy and say wow aunty can you please share recipe?
Yes why wouldn't they share recipe. But, if cooking is an art, isn't the chef called an artist? How do they protect their unique recipe and exclude others from using it? Can your recipe be really protected under IP? Well may be. There are certain criteria for getting a Patent.

What are entities for Patent?

According to Patent amendment act, 2005 of Indian Patent Act ,1970 there are mainly three criteria which are to be fulfilled
  • Novelty
  • Non-obviousness
  • Industrial utility

Patent amendment 2005 of the Indian Patent act, 1970 as we all know has introduced product Patent protection for food, pharma and chemical interventions. Having a look at Indian Patentdatabase , we will find number of granted Patents and hundreds of Patent application on one or other food compositions. Specifically talking about food recopies ne Patented can be little tricky. The recipe must meet all the basic conditions Patentability which are that the recipe must be useful, novel and non-obvious.

The ingredients used in preparing the food and instructions on how to prepare falls under category of composition and the process through which the indigents are cooked in order to achieve the end product is the invention. This shall help cover industrial utility. But, the recipe should not be the mere admixture of substances resulting in aggregation of properties of the components according to sec 3(e) of the Indian Patent law.

Food recipes are definitely Patentable in India, certain things are to be kept in mind which are as follows:

  1. The recipe should not be within the ambit of section 3 (e) of the Indian Patent Act.
  2. The recipe must involve an inventive step, achievement of unexpected results such as vegan, sugarless yet containingthat good texture and flavor.
  3. Skillful draft of Patent application claiming elements intelligently.
  4. If your recipe does not meet any Patentability criteria there are always options such as copyright to avail that protection. Expression of your original recipe instructions in the form of say a book or any other form of compilation can always be a subject matter of copyright.

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