Societies have always had to work out ways to reward and protect originality. The Ancient Greeks in the Sicilian colony of Syracuse used to give sole rights for a year to any professional cook in a tavern who developed a new recipe, thus creating a system where everyone knew whose recipe it was by the time anyone else could use it.
Any dessert fanatic can tell you that Peach Melba was invented by Escoffier in honour of the soprano Nellie Melba. Mention the phrase ‘Chocolate Nemesis’ and a guaranteed slew of middle-aged, middle class, middle England will shout, “River Cafe!” faster than two winning ladies can shout‘bingo’ on a Friday night in the Saltcoats Mecca.
In the past few weeks, the giant coffee chain Starbucks has got in on the act and announced that after ‘extensive research’ in their bakeries, their chefs had come up with a new, completely original hybrid of a muffin and a doughnut, filled it with jam and called it a duffin. Desperate to be known for more than just bland coffee and a flagrant disregard for tax, it seemed that the company had struck marketing gold. After all, everybody with a sweet tooth remembers the craze surrounding the cronut creation in New York by Dominique Ansel, as well as the resultant queues out the door of the store. Starbucks’ factory supplier, Rich Products, a $3bn a year global food corporation who supply Starbucks (when the marketing people at Starbucks say "our chefs", this is the company that they are realistically talking about), have trademarked the name ‘Duffins’ in the UK, meaning that no other company, large or small, can sell baked doughnuts under the name of duffins due to the risk of heavy fines.
There is one spanner in the works of such originality and such a marketing dream. A small bakery in London with four shops, Bea’s of Bloomsbury, has been selling duffins for more than two years. In fact, even when Bea’s started selling them, the idea wasn’t particularly new – a number of small bakeries do baked doughnuts and they have appeared in a number of recipe books throughout the years, not least Bea's 2011 book "Tea with Bea". It was Bea’s customer base at the store near St Paul's Cathedral who christened the creations duffins – the term that intuitively came to mind when referring to a hybrid of a muffin and a doughnut - and the name stuck.
It never occurred to Bea Vo, owner of Bea's of Bloombury, to trademark duffin as it was her customers' who created the name. She made her position clear on Twitter: "I don't believe that dessert names should be trademarked, and so I didn't [trademark it]... but now it seems that Starbucks could legally make us stop selling our own creation." She went on to explain that she had been advised that a legal challenge to the trademark would cost a minimum of £5,000. Small change if you are as big as Starbucks, but a massive amount that a small business like hers just doesn't have to spare.
Starbucks have since claimed to have done a full online investigation proving that no one was using the name duffin anywhere (worringly, it seems that both their researchers and the Intellectual Property Office are incapable of doing a basic search engine trawl for a word, as "duffins" appears from articles in places like the London Evening Standard from well over a year ago which are fully accessible from Google.) The coffee chain has also advised Bea that they will not stop her selling duffins, a promise that Bea's supporters fear will last as long as the publicity. Bea wants them to drop the trademark altogether. "The point of a trademark," says Bea, "is to stop other people from using it. So if you aren't going to, why have a trademark?" Quite.
The trademarking of food and drink names and the issues around it has reared its head a few times of late, most memorably when an English-owned restaurant chain trademarked the name of Vietnam’s national dish (‘pho’). They recently threatened the owners of the Vietnamese restaurant "Mo Pho" but backed down in the face of the resulting PR disaster. Additionally, the tiny Norfolk-based brewery Redwell received a cease and desist letter from Red Bull, with the 'brand enforcement manager' (yes, really) stating that Red Bull have a trademark on "Red", and considering that "well" used the same last two letters as "Bull", there was a realistic danger that the existence of Redwell beer would dilute the Red Bull brand. The brand enforcement manager's fear was that us poor customers would get confused between them and buy a craft beer instead of a highly caffeinated drink.
Ale lovers across the UK begged their local small breweries to create beer named "Red Bullies" in response, and an extensive online campaign has meant that Redwell and Red Bull have reached an ‘amicable agreement’. I'd hazard a guess that the brand enforcement manager and the public relations manager of Red Bull had a rather intense meeting as a result – but this is, of course, conjecture.
Behind our backs, a small group of large and wealthy companies are trademarking more and more words in the name of "brand protection." Whether it is a primary colour, someone else's national dish or someone else's dessert, things that are, or are about to be, common parlance are trademarked and codified. They are turned into something an organisation can make exclusive to them for the money.
For the concerned citizen, or the affected small business owner, the only option is to rally the online troops and create a stink as the one thing a large company fears more than not having a trademark is public relations gone awry. Luckily for us, in the social media age this can be relatively simple.
However, once the bad publicity has died down and the PR machine is back on track, there are precious few options left to tiny fish left in a sea of trademarking sharks. We shouldn’t be too quick to forget the duffin.