The discussion
The crompouce grew into a craze in recent weeks. The pink croissant was imitated by numerous bakers and even supermarkets and sold under the name "Crompouce." This may have violated the Utrecht baker's trademark and design rights. Reason for her to take action.
The baker takes the position that other bakers will henceforth be allowed to sell the crompouce only if they have a license provided by her. Based on this license, the baker would be entitled to compensation per crompouce sold. Not for nothing did the baker register the Crompouce as a trademark and design.
Is no one else allowed to sell the Crompouce now?
The brand "Crompouce"
A trademark registration gives the holder of the trademark right the exclusive right to use the registered sign. This exclusive right can be invoked against anyone offering the same or similar products or services, under the same or a similar name , without authorization.
Descriptive name
So, in principle, the Utrecht baker can take action against others who use the trademark Crompouce for the same or similar pastries. But: a valid trademark may not be descriptive of the products or services offered under it. Since the word "crompouce" is a combination of the words "tompouce" and "croissant," the question is whether the mark is not too descriptive.
Similarly, the trademark application for the "Cronut," which was a hit earlier this year, was eventually withdrawn.
Model design right
The appearance of the crompouce was registered by the Utrecht baker as a design right. A design right protects the "appearance of a product," including its shape, material, color and, for example, texture. Based on the design right, the holder can oppose, among other things, the sale of a similar or identical design.
Own character
This would mean that the Utrecht baker could oppose the sale of the same pastry by other parties. But: a valid design right requires that this design is new and has an individual character. It is therefore questionable whether the design registration will stand. Indeed, a baker from Zeeland claims to have been selling the pastry under the name "Roze flap" for thirty years.
Copyright on the recipe
What about the protection of the recipe or taste of the crompouce? Regarding taste, the Court of Justice(ECLI:EU:C:2018:899) ruled in 2018 that it cannot be accurately determined by technical means. Therefore, it cannot be distinguished from similar products. This is because taste is subjective and therefore cannot be protected by copyright.
In principle, a recipe is also not protected by copyright. This is because a recipe is often an idea or concept and there can be no copyright on it. This may be different if the recipe is written down in a special way or presented in an original way.
The future of the crompouce
Initially it seems that the combination of a tompouce and a croissant will remain available outside Utrecht. Possibly under a different name and with a different design, but that will have to be determined in a procedure. Several bakeries are taking precautions and are advertising the pastry under another name, such as "Cro-pouce".
This just goes to show the importance of trademark registration. A registration provides the tools to take action against other parties using your trademark. In addition, a trademark registration is a valuable tool for your company in case of negotiations.
