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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3106
Experience:  Experienced in intellectual property law
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My wife and I own a small bakery. We've been protecting our

Customer Question

My wife and I own a small bakery. We've been protecting our recipes as trade secrets so far. We are about to launch a cake that also has a supplemental health benefit. Our research leads us to believe that no one has ever made a cake that does what ours does, or with the name we are planning to use.
Assuming that we abide by any FDA regulations that apply, what is the best way to protect this product? Can we patent the intended result or the ingredient combination? Can we trademark the name in such a way that anyone who creates a similar cake would have a tough time describing what they do without infringing on our trademark?
Submitted: 2 years ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 2 years ago.

If your desired "trademark" makes it difficult to describe the goods then the patent and trademark office will likely not issue the desired "trademark". For example, you cannot trademark "Apple" for apples. The term "Apple" for apples is considered generic as "apple" exactly describes the product "apple". You can trademark "Apple" for computers as it is nonsensical UNTIL Apple made Apple Computers famous (so to speak).

Now, as long as the name you wish to call your cakes is not generic or too "descriptive" of the product then you can trademark the name.

Yes, it is possible to patent a cake with health benefits as long as:

(1) the same thing has not been done before;

(2) your cake is not an obvious variation of a previous product;

(3) you came up with the design (i.e. you invented the cake);

(4) you have not been making and/or selling the cake for more than a year (before filing a patent application);

(5) if you will not tell on yourself in (4) above, the issue becomes if someone else can prove you were making and/or selling the cake for more than a year before filing a patent application;

Basically, if you have been making your cake for more than a year and/or selling same for more than a year, no one, including you, can get a patent on such a cake.

Keeping your ingredients a trade secret may be the best call assuming others cannot discover your ingredients or guess same from your advertisements and marketing.

Lots of fact specific issues to consider when it comes to patent law.

Please keep asking questions until you are satisfied with my answers.


Customer: replied 1 year ago.
Thanks so much for your response. To clarify with an analogous example (intentionally nonsensical, and having nothing in common with the real product):If we were to create a product and name it "Skid Markz: The Natural Laxative Brownie", which parts of the name would we be able to trademark - the first part or the second part?
Expert:  montysimmons replied 1 year ago.

The mark "Skid Markz" for food goods with (or without) laxative would likely be registered by the USPTO. In fact, such term would likely be considered arbitrary - a good thing for trademarks.

Such is assuming there are no similar marks already in use.