Can a Pretzel Sandwich be a Trade Secret? – Part 2

In the previous installment, we talked about how Sweet Street Desserts and Better Bakery worked together to create a pretzel sandwich, sharing information under an NDA.

Unfortunately, the parties had a falling-out. Sweet Street claimed Better Bakery had a secret scheme to steal the design and product development qualities of Sweet Street’s pretzel sandwich. Better Bakery denied the “secret scheme,” but it did start selling pretzel sandwiches to third parties.

Sweet Street sued for breach of the NDA.

Better Bakery argued that it didn’t steal any trade secrets because the specifications of the pretzel sandwich were entirely visible to anyone looking at the sandwich. The court agreed that Sweet Streets failed to identify any attributes of the sandwich that weren’t knowable just by looking at it.

Lessons Learned

Basically, Sweet Street tried (and failed) to protect the “idea” (and design) of a pretzel sandwich using an NDA.

Importantly, Sweet Street:

  • Didn’t try to get any kind of intellectual property protection for its design (other than calling it a trade secret, which the court said it wasn’t)
  • Didn’t get Better Bakery to sign a non-compete

Doing either or both might have led to a different result in the case.

Here’s more about the court case: Sweet Street Desserts, Inc. v. Better Bakery, LLC.

Can You Patent a Sandwich?

As we discussed in this blog, the best way to protect a product idea is often by getting a patent.

But can you patent a sandwich?

YES, actually! (Read how in this article.)

As we discuss in this blog, getting a patent will cost you money – anything from a few hundred dollars to more than $16,000 – so it better be a pretty great sandwich!

If You’re Happy Sticking With a NDA, Make Sure To Get It Reviewed!

NDAs can help you protect your confidential information (if it’s really confidential), but make sure you know what’s common and uncommon in your NDA or if there are important clauses missing. We recommend you upload your contract to lawgeex.com and have the LawGeex tool analyze it for you. It’s fast feedback to help you make more informed decisions.

The information and materials in this blog are provided for general informational purposes only and are not intended to be legal advice.

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