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Can you copyright a cookie?

billymach4

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A complaint filed last week in federal court focused on Trader Joe’s Crispy Cookies, which have a striking resemblance to Pepperidge Farm’s famous Milano cookie. According to Reuters, Pepperidge Farm claims that similarities in the cookies' shape and packaging are close enough to constitute trademark infringement.

http://www.marketplace.org/2015/12/08/business/can-you-copyright-cookie

Has anyone ever had the Trader Joe’s Crispy Cookies? Now I want to go out and get a package. Do they really look like the Milano cookie?

Please let me know
 

"Roger"

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There is a confusion here (which Marketplace should have done a better job sorting out) between a copyright and a trademark infringement. You can trademark things that are clearly associated with a product that you turn out. Mercury Marine, for example, has a trademark on the color black. It is not that other companies cannot use the color black, just not on outboard motors. (In defense of this, any boater who sees a black outboard immediately knows that it is a Mercury.) In a like manner, Disney is famous for its vigorous defense of its cartoon characters.

Pepperidge Farms lawsuit is a trademark claim (which the story notes, but not in a way that makes it clear that this is different from the headline and topic of the story), not a copyright suit. Whether the shape and size of Milano cookies are so associated in people's minds to deserve a trademark, I don't know. Nor is it clear how close something can resemble a trademarked product. (Using my example of outboard motors, other companies have turned out dark blue motors and grey motors trying to trade off the popularity of Mercury motors.)
 
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stmartinfan

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On the original question, you cannot copyright the list of ingredients used to make a recipe. However, you can copyright the specific way you write up the recipe, such as the style, format, preparation steps, etch. At least that was the opinion of lawyers I used to work with at a big food company.

And as someone else points out, the cookie is actually a trademark issue. It would involve comparing the original description that was approved when the trademark for the cookie was granted to see how closely the copycat version matched it..and how likely consumers were to confuse the copycat with the original. It might also involve how closely the packaging is made to mirror the original. Of course, all this is where the judgement call has to be made.

There is also the issue that the holder of a trademark must take steps to protect its trademark or risk losing it. You can't just ignore a trademark misuse.
 
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