The crompouce is causing quite a stir. Its inventor, Ulrika Menig, is threatening legal action to stop others from making her pastry and selling it under the same name. Yesterday, our patent attorney explained on Hart van Nederland that the name "crompouce" is protected as a trademark, but that a trademark is not the same as a patent. Still, Menig could win if she goes to court. That's because we discovered she also holds a design right, which protects more than just the name.
Protecting how a product looks
Here's a quick crash course in design law. A design registration protects the outward appearance of a product, like the distinctive look of a sports car, a piece of furniture or a food product. Once registered, no one else can make a product that looks the same.
So it isn't about the name, but purely about appearance. That's why a design registration includes drawings and photos showing the shape, materials and colours. If a competitor makes a product that looks the same or very similar, that's infringement. It doesn't have to be an exact copy.
Back to the crompouce. I'm not a judge, but I was curious about Menig's chances, so I took a look at her design registration.
Crompouce vs. croissant vs. tompouce
The first thing a judge would ask is how the crompouce design differs from products that already existed. The obvious comparisons are the croissant and the tompouce. I expect the difference is big enough. After all, it's purely about the design, not about whether the ingredients were already known.
The Italian croissant
The baker in the Hart van Nederland report says the crompouce originated in Italy. The Italian croissant shown does have similar ingredients, but it looks clearly different. It's greener, and the shape differs too. So I doubt it would make Menig's design invalid.
Menig deliberately chose a pink glaze for her design. Nothing green about that. Her registration also shows a straight croissant. So how would a judge view a crescent-shaped crompouce? On the other hand, even if a croissant were cut differently or the cream injected another way, the overall look could still be similar enough to count.
What's next?
Bakers who want to play it safe can take out a licence. They pay a fee and get permission to sell the crompouce. Bakkerij van Maanen recently did exactly that. It now pays Menig and can make and sell the crompouce under that name.
Heading to court?
The baker on Hart van Nederland seemed less worried, so this may end up in court. If it does, the accused baker's lawyer has a tasty job ahead. It will all come down to what already existed before Menig registered her design. So the lawyer will need to track down as many similar pastries as possible. Sounds like a job for a real foodie.
