One of the most famous cakes in the world and a symbol of Austrian patisserie is the Viennese “Sachertorte”. But did you know that a legal battle lasting several years was fought over the rights to the name “Sachertorte”?

 

The Origin of the Sachertorte

According to legend,[1] the Sachertorte was invented in 1832 by Franz Sacher, who was an apprentice in the court kitchen of Austrian Prince Klemens von Metternich (the chairman of the Congress of Vienna and long-time minister under the Habsburg emperors).

Prince Metternich asked his chef to bake a unique cake for a group of distinguished guests. But the chef was ill, and the task fell to the sixteen-year-old Franz Sacher, an apprentice pastry chef with a creative and resourceful mind. “Let him not embarrass me tonight,” Metternich reportedly sighed (“Dass er mir aber keine Schand’ macht, heut Abend!”).

Franz Sacher set to work with the ingredients available and created the first version of the “Sachertorte.” His cake was apparently well-received, and since then, it was often served at Metternich’s table.

The Sachertortes of Demel and Hotel Sacher

Franz Sacher later worked in Bratislava and Budapest but returned to Vienna during the revolution year 1848. In 1851, he founded a “Wine and Delicacies Restauration,” where he apparently sold his chocolate cake to customers.

His son, Eduard Sacher, apprenticed at Demel[2] – the court supplier of pastries for the Habsburg emperor – where he further developed the recipe for the Sachertorte into its current form.

In 1876, Eduard Sacher opened his own hotel, Hotel Sacher, in Vienna, where he offered the Sachertorte to his guests. From then on, both Demel and Hotel Sacher offered a “Sachertorte”, but it seems the term was already well-established in Vienna.[3] Katharina Prato’s 1858 cookbook (“Die Süddeutsche Küche”) already included a recipe for “Chocolate-Torte à la Sacher.”

Many years later, in 1934, Hotel Sacher declared bankruptcy, and Eduard’s son, also named Eduard, went to work at Demel. He granted Demel the exclusive right to sell an “Eduard-Sacher-Torte” and reportedly also sold the family recipe to Demel[4] (though Demel probably already had the original recipe from Eduard Sacher senior).

Hotel Sacher made a relaunch with new owners,[5] who also began selling the Sachertorte via street sales and, apparently, filed a trademark application for “Original Sacher-Torte” in 1938.[6]

Viennese Cake War: who may use the name “Original Sacher-Torte”?

After World War II, the cake war between Demel and Hotel Sacher truly erupted. The Austrian courts had to decide on the right to use the term “Original Sacher-Torte” and also on the use of the second layer of apricot jam in the middle of the cake.

Demel did not use apricot jam between the chocolate cake layers, instead spreading a single layer of jam on top of the cake, under the chocolate glaze. According to Demel, this was the original recipe of Eduard Sacher. Hotel Sacher, however, disputed this, claiming that the original cake contained two layers of apricot jam. Austrian writer Friedrich Torberg – a customer of both establishments – testified in court that Hotel Sacher also used only one layer of apricot jam before World War I, meaning the current Sachertorte from Hotel Sacher (with two layers of jam and sold under the name “Original Sacher-Torte”) is actually less “original” than Demel’s version (with one layer of jam).[7]

After a lengthy legal battle, the parties reached a compromise in 1965.[8] Since then, only Hotel Sacher may sell the cake as “Original Sacher-Torte,” with a round chocolate seal on top. Demel cannot use the word “original” for its Sachertorte but retained the right to use the names “Eduard Sacher-Torte” or “Demel Sachertorte,” marked with a triangular chocolate seal. Thus, the dispute was eventually resolved, and both establishments could continue selling their own versions of the Sachertorte.

Hotel Sacher still holds several registered trademarks for the “Original Sacher-Torte,” both nationally, within Europe, and internationally.

Legal Protection of the Recipe?

Legally, recipes cannot be protected by copyright or trademark, but owners usually try to keep them as secret as possible. The exact recipe for the ‘Sacher-tortes’ from Hotel Sacher and Demel is reportedly still kept secret, but in reality, Hotel Sacher publishes the recipe on its website, and the Austrian government also lists a recipe on its website.

Bart Van Besien

Lawyer

 

[1] This story was told by Eduard Sacher, the son of Franz and the founder of the famous Hotel Sacher.

[2] “k.u.k. Hofzuckerbäcker Demel” is still an icon of Austrian delicacies. The designation “k.u.k.” stands for “kaiserlich und königlich” (imperial and royal) and refers to Demel’s status as the court supplier to the Habsburgs.

[3] Eduard Sacher wrote in 1888 in a letter to the editor of the Wiener Zeitung about the Sachertorte:
“You can find it all over Vienna, in all major cities, in short, everywhere on the menu, as a well-known specialty.” (in German: “Man findet sie in ganz Wien, in allen größeren Städten, kurz überall am Speisezettel als eine bekannte Spezialität.”)

[4] According to Friedrich Torberg in Die Tante Jolesch, oder der Untergang des Abendlandes in Anekdoten, ‘Sacher versus Wider-Sacher’, 1961, pp. 314-315.

[5] The Gürtler family is still the owner of Hotel Sacher.

[6] This is stated on various websites; I can’t personally find a trademark application from 1938, but it’s likely that such old Austrian trademark applications are not publicly available from abroad. The problem with this whole story is that the websites describing this “cake war” often copy from one another without doing any independent research.

[7] Friedrich Torberg in Die Tante Jolesch, oder der Untergang des Abendlandes in Anekdoten, ‘Sacher versus Wider-Sacher’, 1961, pp. 314-315. Torberg concluded with the remark that he actually doesn’t like Sachertorte at all, whether it’s made with or without marmalade.

[8] Almost all online sources mention that this was an ‘out-of-court settlement,’ but Friedrich Torberg – who acted as a witness in this case – states that this outcome was imposed by the Oberlandesgericht (the Court of Appeal), which ruled in favor of Hotel Sacher. It’s likely the parties introduced the case to the Supreme Court (Oberster Gerichtshof), and then reached an ‘honorable compromise’.