From Fig Rolls to Mikado: Can you copyright a biscuit?

Now We Know: How could two companies be making and marketing the same mallow treats?

Mikado or a Jam Mallow? Turns out they are made by the same company. Photograph: jacobs.com

Mikado or a Jam Mallow? Turns out they are made by the same company. Photograph: jacobs.com

 

On a recent tea break, I found myself gazing lovingly at the Mikado biscuit in my hand. I marvelled at the fluffy, pink hedgerows of marshmallow lining a sticky river of red jam, all balanced beautifully on a crumbly biscuit base.

As I reached for the packet to dive in for seconds, I got a bit of a shock; I had been eating *gasp* Bolands Jam Mallows and not Jacob’s Mikados! Even to a super fan like myself, the biscuits appear to be indistinguishable. How could two companies be making and marketing the same mallow treats? Can you copyright a biscuit?

Biccies have ended up in court, you know. In 2007, a dispute between Jacobs and McVitie’s was settled in Dublin’s High Court. It prevented McVitie’s from launching their cream crackers and fig rolls to the Irish market, as Jacob’s alleged their packaging was confusingly similar.

Elaine McGrath is a partner in Reddy Charlton Solicitor’s Commercial and Business Law Department. “Copyright only protects the expression of an idea, and not necessarily the idea itself,” McGrath explains.

“The written expression of a recipe may have some copyright protection but the list of ingredients does not as that is considered a fact and formula.”

Protectable

So what about the case of a beloved biscuit? “The shape of the biscuit may be protectable under design or trademark law if it’s sufficiently distinctive. The name is protectable under trademark law. The general get-up, appearance and brand is protected by virtue of having a reputation in the market. The short answer is if you’re trying to protect a biscuit with copyright is that pictures of the biscuit, written descriptions of the biscuit or how to make them may be protectable but not the actual biscuit.”

As for the case of Mikado vs Mallow, it turns out that there is no need for a court case because Jacob’s and Bolands are both owned by the same mother company, Valeo Foods. The main difference is that Jacob’s products are only sold in Ireland, while Bolands biscuits and treats are also available in the UK. It turns out that, to paraphrase Shakespeare, a Mikado by any other name still tastes as good.

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