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The Irish Times Magazine - - FOOD- FILE - Aoife McEl­wain

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.”

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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