By Rebecca Chong
Since the win in the US Presidential election to the inauguration of President Trump, the new leader has been put under the microscope by the media, with endless coverage of the daily affairs of the new President. Even celebrities are talking about President Trump! Why break the trend? Relax. There is no politics here, just CAKES!
Recently the famous Chef Duff Goldman from the Ace of Cakes, a reality show in the Food Network, posted a side-by-side comparison of the strikingly similar cakes on the social media, Twitter, stating that ‘the cake on the left is the one I made for President Obama’s inauguration 4 years ago. The one on the right is Trump’s. I didn’t make it’. (Source: Twitter Duff Goldman @duffgoldman)
Obama’s 2013 inauguration cake (left) had nine tiers and its colours gradually went from light blue to dark blue. Trump’s cake (right) looked nearly identical to Goldman’s design. (Source: http://www.dailymail.co.uk/news/article-4143090/Celebrity-chef-claims-Trump-plagiarized-cake.html and http://www.nydailynews.com/news/politics )
Gone were the days when we would just drop by a confectionery shop to buy a ready-made cake or whatever cakes that’s available on the shelves. Today, cakes are more than just celebratory food, they are works of art and people are captivated by beautiful cake designs, a craze that caused the cake business to boom in recent times. Similar to any business, the cake business is a competitive one and to place one’s business on a pedestal, the cake designs have to be extraordinary, appealing and beautiful (and of course delicious). Unfortunately, while you strive hard to stand out from the rest, maximising your creativity, building your own brand, giving your cakes a persona which otherwise lack, others may just copy them with ease. Despair not for there is still hopes under the protection of the Intellectual Property rights.
To begin with, whenever a (new) cake design is created, it falls squarely under copyright protection, particularly under the category of artistic work as it is the “author’s” original, creative expression fixed in a tangible medium. In other words, copyright protects the designs or the appearances of the cakes but not the utilitarian aspects of the cakes, i.e. the recipes or processes in making the cakes.
However, since copyright does not protect ideas and concepts it is generally permissible to borrow ideas and even to use a prior work or design for inspiration because copyright only protects the author from an unauthorised reproduction of the actual design, not a design which has a similar style or concept. Therefore, a baker who, without permission, uses another person’s design or any copyrighted characters such as cartoon characters could be at risk of committing copyright infringement.
Although it may seem like a norm for a baker to copy another’s cake designs but if you want to prevent others from benefiting from your hard work, or more importantly to prevent competitors from squatting on your creativity, you should take some proactive measures by attaching the copyright symbol to the pictures of the designs on any printed materials or expressly informing the public of your rights on your websites. The placing of the copyright symbol coupled with a cease and desist letter to the infringer is likely to stop the copying.
With the proposed amendments to the Malaysian Trademark Act in the near future, non-conventional trademarks such as smells, sounds, colours, shapes, moving images, taste, textures and etc. shall be registrable trademarks. This move may enable cake designs to be protected under the Act, as “3D shape marks”, albeit the difficulty and rarity of such registration.
A trademark is an identifier of the source and it is used to distinguish the goods and services of one trader from those of other traders. Therefore, to be registrable, cake designs must be used as trademarks to indicate and to identify the source of origin. Apart from that, just like any ordinary trademarks, cake designs must be distinctive. In other words, the designs must have acquired secondary meaning by being recognisable as the source identifier.Take for instance, the name Toblerone will immediately pop up whenever you see a triangular shaped chocolate, Hershey’s Kisses for flat bottom teardrop, and Kit Kat’s four fingers shaped chocolate slab. Although it seems to be more common for chocolate products to be registered as trademarks than cake designs, there are several registered cake designs existing in the United States Patent and Trademark Office. For examples, 
Carvel’s famous “Fudgie the Whale”, a whale shaped ice cream cake and Magnolia Bakery’s registered cupcakes with its signature icing swirl -.
IP protections for food products attract both criticism and applaud, depending on which side of the coin one prefers but the main idea is to encourage creativity in the culinary industry. Just like any artists who paint, carve or mould, cake designers should be treated equally by having these protections up their sleeves. The only difference is their works are edible works of art.
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