Protecting your recipes and brand
Cooking is, and has for some time been, big business. Be it glossy books by household names, signature dishes across chains of restaurants, or experimental creations by molecular gastronomists, there is a huge amount of value in the recipes underpinning the food we buy and the dishes we eat.
Not surprisingly, then, our food sector clients do come to us seeking advice as to whether a recipe can be protected by copyright. Can an organisation involved in preparing food – whether an upmarket restaurant serving wealthy clients or a humble cog in the food service supply chain – protect a culinary innovation using patent protection? Or is it better to keep the recipe/process confidential and treat it as a trade secret?
Copyright protects certain categories of work, including literary, dramatic and musical works. Importantly, it protects the form an idea takes and not the idea itself. Therefore, while copyright may protect a recipe that is recorded in writing (e.g. a literary work) and may offer some protection if a rival chef copies your recipe in their book, it is unlikely to offer much protection if a rival copies the idea (as opposed to the written form) and cooks the recipe in their own restaurant. Consequently, copyright offers chefs – and food processors in general – limited protection as in most cases the chef is not looking to protect the written form, but the end product.
Patents are granted to new inventions that would not have been obvious to a person skilled in the relevant art (known as the ‘inventive step’). To be patentable, a recipe or technique would have to be new, and not obvious to a skilled chef. If you succeed in obtaining a valid patent it will last for 20 years and essentially grant you a monopoly right, allowing you to prevent others from producing the same recipe, even if they arrived at it independently. However, the requirements of novelty and the inventive step will more readily apply to new chemical compounds or processes used in a recipe or a Heston Blumenthal-type creation – if you are simply putting together known ingredients with no new and inventive technical step the recipe will not be patentable. Patenting therefore lends itself best to factory-made food, or to the highest and most scientific of haute cuisine.
So, if patents and copyright don’t offer the protection you need for your recipes, what can be done about the situation? The alternative is to protect a recipe as a trade secret. This requires information holders to ensure their information is and remains confidential and is only given to another party where that party is under an obligation to keep it confidential. Famous examples of trade secrets include the Coca Cola recipe and KFC’s blend of herbs and spices. Making sure a recipe is kept as a trade secret will require careful vetting of any potential recipients of the recipe and you should include specific obligations of confidentiality in your contracts with employees, consultants, or anyone else who may have access to the contents of your recipe. Of course, if you decide to publish a recipe in your cookbook, sales brochure or website, it will no longer be a trade secret. A decision should therefore be taken as to whether the interest generated by a published recipe outweighs the protection of a trade secret.
Trade mark protection may also be available for the name of the product and can be used in combination with the above to build brand recognition over time. You will often see, for example, similar types of biscuits on the shelf of a supermarket, but invariably the reason a consumer picks one over another is not because of taste but because of brand recognition.