Can you copyright a cookie?

Sarah Menendez Dec 8, 2015

We talked about the limits of copyright infringement with Columbia Law Professor Jane Ginsburg last year, and thought we’d take another listen when we heard that Pepperidge Farm is taking Trader Joe’s to court over a trademark matter.

With all the holiday cookies we were eating, we wondered if their recipes could be copyrighted.

“You can copyright your literary expression of the recipe, but you can’t copyright the cookie and the ingredients or steps necessary to make the cookie,” said Ginsburg.

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.

However, this isn’t the first time that a grocery store makes its own version of a name brand food product — or the first time someone in the food industry ostensibly steals an idea. 

Starbucks recently debuted its Toasted Graham Latte and began selling Bantam Bagel Balls. These items are allegedly very similar to the Cereal Milk and Bagel Bomb products from Momofuku Milk Bar.  Celebrity chef and Momofuku creator David Chang called out Starbucks on his Twitter last week about copy-cat products. Though Chang has people talking on Twitter, he has not taken legal action against Starbucks.  

(Correction: An earlier version of this story said that Pepperidge Farms was suing over a recipe copyright.)

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