OF CAKES AND OF INTELLECTUAL PROPERTY

A recent culture that filled the social media space during the global lockdown as a result of the COVID-19 pandemic was the ‘dragging’ of people for various reasons. For each passing day, someone has been dragged on social media, especially on Twitter. Celebrities, Commander-in-Chief of countries have been dragged, apparently, no one was exempted from being dragged. All you needed do was present yourself for dragging.

One of such draggings was that of a cake baker. A baker called out another baker and asked the later to stop! By my guess, stop imitating my cakes, my designs, or whatever. At first, it sounded like a joke, because that would not be the first time cakes have been imitated. On second thoughts, I realized there are intellectual property issues arising from this seemingly trivial matter.

Cakes have been part of us for donkey years. They are an integral part of every celebration we can mention: weddings, birthdays, anniversaries, house warming, graduation, and of course inauguration into public office, to mention a few. And, with the advent of the art of cake decorating, cakes are no longer mere desserts but also a presentation of design. When these cakes are made, they do not just get to be consumed, pictures of them stay with us on the internet, on the social media pages of the bakers, and that of every other person who took pictures of the cake. It is on these social media pages that other cake bakers see the pictures and then imitate, making almost replica for their clients. It is also not out of place to say that some cake decorators tend to take inspiration from other bakers to come up with new designs.

During the inauguration of the U.S. President Donald Trump, one of the cakes used was an exact replica of the one baked for the inauguration of President Barrack Obama. This matter was a few inches away from being litigated. Cake designer and the owner of The Buttercream Bakeshop, Terry MacIsaac, was allegedly accused of copying the cake design from Duff Goldman who baked a similar cake for President Obama’s inauguration. Although Maclsaac defended his work by claiming that the representatives of the White House asked him to create a replica of Goldman’s cake, the incident sparked a debate as to whether cake bakers need to protect their designs or not.

Now, we will attempt to identify all possible intellectual property rights that can be derived from a cake, vis Copyright, Patent, Trademark, and Industrial Design.

Cakes and Copyright

Copyright means the right to copy. It refers to the sole right of the creator to produce or reproduce a piece of work or a substantial part of it in any form. According to Section 1(1) of the Copyright Act, CAP C28, LFN 2004, you can protect literary works, musical works, artistic works, cinematograph works sound recordings, and broadcasts. Artistic work, as mentioned in the law, refers to paintings, drawings, maps, photographs, sculptures, and plans. When we look at cake designs, it can be termed as an artistic work that can be classified as a painting, sculpture, and drawing. So copyright exists in a cake when pictures of it are published on any medium.

Cakes and Industrial Designs

Industrial designs refer to the visual aspect of work. They cover the shape, the pattern, the design, or any other visual feature of the product. Examples of things that could be protected by an industrial design include the shape of a unique doorknob or the pattern of a knitted sweater. One may be able to have the design of a product registered as an industrial design. This would give the right owner exclusive rights to the design of the product.

However, it is important to remember that industrial designs only refer to the visual aspect of the creation and not the composition of it. So, if a cake design is registered, only the artistic elements of the cake are protected and not the recipe. Yes, one can protect cake design by obtaining an industrial design registration. The design however would have to be original and should not resemble any other cake design.

Cakes and Trademarks

Confections can also qualify for trademark protections if they have non-functional aspects that consumers come to recognize. For example, Carvel’s “Fudgie the Whale” ice cream cake, shaped like a whale, is a registered trademark in the USA. 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. The defendant had a pending bankruptcy case and the court stayed the IP case pending resolution of the bankruptcy case.

Cakes and Patents

If you wish to protect your cake recipe as well, then you need to get that patented with the help of a patent lawyer, although whether or not your recipe is patentable is an entirely different question. Arguably, Goldman’s original Obama cake was an artistic expression that qualifies for intellectual property protection. The part of the cake that was copied was his expression—his vision, the product of his mind, and not his recipe.

There’s a fair amount of confection copyright chatter online these days as more and more people post food photos on social media, and chefs are becoming celebrities, but, there doesn’t actually appear to be any active cake intellectual property litigation in Nigeria. There are many possible reasons why: because the notion of cake as artistic expression qualifying for copyright is relatively new; because damages are difficult to prove; or because often a cease and desist letter is enough to stop any allegedly infringing action.

For example, in 2011, the International Olympic Committee preempted any potential infringement by sending an advance warning to British bakers that they could not frost cakes with the Olympics logo or any other official event symbol.

As a cake baker, you should assume the image of a cake you see on the internet is protected unless you learn otherwise. Images found on the web belong to someone – such as the artist, photographer, or brand owner – and cannot be copied without the owner’s permission.

You may want to say what is the big deal? It’s just cake, it gets eaten in the end. I’m not hurting anybody by making cakes for people in festivity. You’re lucky to be in a business that makes people happy! But you won’t make the artist, brand owner, or celebrity very happy if you take their intellectual property without getting their permission. And you won’t be very happy if you get dragged to court for doing so. Spread happiness with your cakes by not using designs that belong to someone else.

You need to talk to the rights owner. Do well to enter the DMs of the owners of the images, seek permission before you reproduce. In some cases, you will need to obtain a licence and pay a fee. In most cases, you will pay next to nothing.

The good news for cake bakers is that copyright exists automatically in the image of your cake when it is published on any medium, without registration at the Copyright Commission. However, you’ll have a stronger and almost straight jacket case against an infringer when you register your work and have a copyright certificate.

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Oluwaseyi Arowosebe Esq., a Legal Associate at GAVEL, writes from Abuja, Nigeria. He can be reached at seyi@gavelng, and on Twitter and Instagram @seyiarowosebe.