United Arab Emirates: Copyrighting Cakes

Last Updated: 12 December 2017
Article by STA Law Firm
Most Popular Article in United Arab Emirates, December 2017

Cake! Just the word makes our mouths water. Which one are you craving? Chocolate? Victorian sponge cake? Red velvet? Devil's food cake? Or maybe a slice of cheesecake? There are so many options that all sound wonderful. Be it a birthday, a wedding, or any other special occasion, having some cake makes it better. It is a representation of happiness and comfort and can be said to make events more enjoyable. Has it, however, ever occurred to you that a piece of cake you had at a birthday party was copyright infringed?

Not many people are aware of the Intellectual Property (IP) laws applicable to cake designs. There are two main branches of Intellectual Property, namely copyright and industrial property. While industrial property deals with patents and trademarks, copyright law deals with artistic and literary creations or inventions. It gives ownership and rights to the author, provided that the creation is original and in a tangible form. Ideas that have not yet been written or drawn out in any physical form do not come under copyright protection. Copyright law applied to cakes has become the subject of heated debate in the cake and baking industry, with both sides presenting valid arguments and reasons.

Can Designs over Cake be Copyright Protected?

It's not wrong to say that cake designs nowadays are a work of art. The Baker takes time and energy and uses his skills to the best of his abilities to design a cake. One can say bakers have now become cake designer artists in a sense. But this also means that the specific cake designs the artist creates and puts in a physical form is vulnerable to being copyright infringed. Anything from a cake mold, to the shapes and decorations, to the frosting design and even to the method used to create a particular design can be copied.

There are several ways in which IP laws can protect businesses such as bakeries or even large corporations. Trademark law is used to protect any marks associated with the company or its products. For the protection of confidential business information, the trade secret law is used. Patent law protects new and original inventions and creations. And lastly, copyright law is used when one wants to protect expressive art including cake designs.

There are many reasons for which copyright law can protect cake designs. Cake designs are a work of authorship. They are the tangible and original works of the author and possess the degree of creativity required by a copyright law, clearly showing signs of creativity and originality. As the law on cake designs is unclear, many are not sure if recipes would come under the protection of copyright law. The mere listing of ingredients is not protected by copyright as it cannot be considered to be original. Cake designs fit under the graphical, pictorial and sculptural works category of copyright law. Although copyright laws require no form of fixation, some argue that because a cake is usually consumed after the presentation, the design is not fixed and hence should not be protected by copyright. Today, with creativity flowing in every direction of every sector, cakes are considered more as a work of art rather than a chore of baking. The taste does matter – but it is not all that matters now. The weight, the look, the design, the color, the shape – basically everything. The generic marble white cake on weddings to the symbolic cake in the shape and color of a football field – increases the trend and more possibly, the demand of designer bakers.

Critics

Critics have disputed that using IP protection for cake designs is unnecessary given that imitation is a common practice in chef culture and follows the idea that "Imitation is the best form of flattery." Instead, to prevent others from benefitting from their hard work, they should be encouraged to attach the copyright symbol to picture of their cakes and designs on display which may deter consumers from printing the designs and lead other chefs not to copy. Half of the trade would vanish for bakers and cake businesses if they did not offer cakes that represented children's favorite cartoon characters.

Some argue that the law concerning cake designs is unclear and ambiguous. Cake designs can be protected under IP by four different kinds of laws: copyright, trademark, trade secret law and patents. Trade secret law applies to cake designs only when it is private and not disclosed to the public. Even though the design may look simple, it can have non-obvious concepts that the chef doesn't want to make available to the public. The baker should have the right to protect the design under trade secret law until disclosed.

Design patents are a form of patent law that protects cake designs. However, for an invention to be protected under patent law, it has to be an article of manufacture. The issue is debatable as many don't consider cake design to be articles of manufacture and hence are not covered under the law. Just as books, music or art cannot be patented as they are only the author's words applied to paper and not articles of manufacture, cake designers can claim for creative expression, but there is no article of manufacture to be claimed. While IP protection by patent law on cake designs is debatable, one thing is certain, bakers work hard on their creations, and copyright laws provide protection to creative expressions of ideas, which makes them better suited for these types of works.

But not just generic cakes; cup-cakes too! In the United States, US Patent Number D616,260 filed on 31 July 2009 is a design patent granted to a cupcake mold – but, please don't be surprised. There are a number of cupcake molds that have been granted intellectual property protection. Moreover, in the United States, copyrighting in the baking industry has been extended to concern the animated characters that appear on cakes and cookies. In theory, using designs of animated characters on pastries without the owner's permission is not authorized given that it would impede on their copyrights, their trademark rights, and their personality rights. In practice, most people wouldn't think twice about getting a "Mikey Mouse" design on their children's birthday cakes. But if you want to stay on the safe side, it's better to avoid the images of any cartoons without obtaining the authorization of their owner. Cake designers can be guilty of appropriating another person or entity's work. The Copyright Act prohibits the production of "derivative works", that is, works that take the copyrighted work as a starting point and change an aspect of it, but where the work can clearly be confused with the owner's copyrighted work. For instance, if your cake has a picture of Mickey Mouse with shoes that are green instead of being yellow, you would still be held accountable for copying that picture on a birthday cake.

Conclusion

The famous proverb 'ignorance is bliss' does not apply in court when a baker is accused of copyright infringement. However, copyright laws on cake designs only apply when the cake is intended to be sold for profit or an advertisement, baking cakes at home for friends and family does not count as an infringement of the law. Cake design is an expression of a chef's creative idea and is, therefore, protectable under copyright law. Copyright law promotes originality and creativity, both concepts found in cake designing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions