OMG, I have to try one of these…. That appears to be the general consensus about the so-called “Cronut,” the new New York City food sensation. Early morning lines stretch around the block with customers lining up to buy this croissant-donut hybrid two hours before the Dominique Ansel Bakery in SoHo opens. It’s so wild that scalpers are selling the $5.00 (!) snack for $20.00 or more (!). Most recently, there’s a black market of sorts selling Cronuts — authentic and fake — on Craigslist. Cronut copies have been found in Australia. Ansel’s bakery, which originally limited purchases to 6 Cronuts per person, now limits customers to 2. Huffington Post wrote:
As it turns out, the baked good’s allure maybe less about flavor and more about the cachet that comes with a rarity. In less than a month on the market, the cronut has turned into the ultimate grand gesture, appropriate for any occasion, and a burgeoning form of social currency – an object proffered in a bid to ingratiate oneself with a potential business partner, perhaps, or in atonement.
The term CRONUT has not been widely copied, perhaps because the owner of Ansel’s Bakery filed a trademark application for the name with the United States Patent and Trademark Office (“PTO”) and, according to one report, in five other countries. Ansel said he could justify the cost with just a couple of days of sales. One of Ansel’s competitors was considering filing a trademark application for DOUGHSSANT but couldn’t justify the cost of defending the trademark if it was issued. Other bakeries are considering filing their own trademarks but Ansel’s lawyer “isn’t amused” at the trademark rush and “will be taking action as she sees fit.” Keep in mind, however, that trademark law does not protect the recipe or invention, only the name. To sue someone for infringing the name, Ansel’s attorney would have to prove that the name caused confusion in the market place over the source of the pastry. CRONUT and DOUGHSSANT are hardly confusing, so good luck challenging that. On the other hand, another application filed for CRONUTS by a party apparently not related to the Ansel Bakery, is confusing and will likely be rejected by the PTO. Now that’s a waste of money.
This raises the issue of how do you protect a recipe from being stolen? The short answer is that it’s difficult. Trademark law doesn’t work and copyright law does not protect recipes. One may be able to obtain a patent to protect a foodstuff or process for making the foodstuff, but only if the process or the food stuff is “novel” or “non-obvious.” Novelty and non-obviousness are tough standards for food because people have preparing food for as long as there have been people. Other reasons not to patent a recipe are that a patent requires public disclosure and in time expires. The Coca-Cola Corporation successfully protects its famous soda recipe by simply keeping it under lock and key. The patent route doesn’t seem effective for a food fad. Look for variations of the Cronut under a different name at your favorite bakery. They may be just as good (maybe better).
— Adam G. Garson, Esq.