For a chef, a recipe can be as personal, unique and important, as a book for a writer. So one would assume it should have the same legal protection, right? A recipe as intellectual property?
Fine Dining Lovers contacted a number of experts and looked at the way a recipe can be protected.
Copyright law protects the authors or creators of original works, like musical or literary works, in a tangible form. But could a recipe be such a work? Martin Berger of the Swedish Patent and Registration Office, explains:
"Although recipes can contain a lot of text and information, in principle they can’t be protected by copyright since a recipe only contains the name of the ingredients with the right proportions of for example sugar, flour and butter and then some instructions how to make a cake. Such an instruction is neither original nor individual and does not qualify as a work of art."
It’s a pity that this point of view doesn’t take into consideration the creativity of a chef and the importance of cooking the ingredients in a specific order or quantities, as well as using unique cooking techniques. However, copyright is only one possible way to protect the unique creations of chefs, as we will see later.
In the US, a landmark case on recipes was Publications International vs Meredith, about a book of yogurt recipes by a famous international brand, where the court stated: "The identification of ingredients necessary for the preparation of each dish is a statement of facts." So it seems copyright is not of much help, though Natasha Reed, copyright expert at the Foley Hoag LLP law firm in New York City, points Fine Dining Lovers the way to some exceptions: "Copyright law does not protect merely utilitarian articles, ideas, facts, or formulas. Since food is a useful article, copyright law will apply only if the food incorporates highly creative features that are separable (either physically or conceptually) from the food’s utilitarian features. An example here is Caitilin Freeman’s Mondrian cake."
The cake is one of many desserts inspired by modern art, that were conceived for the Blue Bottle Coffee on the rooftop of the San Francisco Museum of Modern Art, and assembled in Freeman’s book Modern Art Desserts.
Patent may be more useful than copyright. According to Daniele De Angelis, a lawyer at Studio Legale Bird & Bird in Milan: "Patent involves inventions that provide solutions to technical problems. To the extent that recipes or processes meet this requirement, they may turn out patentable (provided that also the other requirements, provided by law, are met)."
And Martin Berger continues: "The invention should not be known earlier in any part of the world, it must be brand new. It is possible to get a chemical patent and a patent for new use of known substances. Substances can include foodstuff, but it is most likely that a recipe will be protected as a trade secret."
It’s important to file the patent as soon as possible, as the first who does so gets the patent and not the first who invented the recipe/procedure. And even more important, the invention should not become “publicly available,” as this usually leads to rejection of the patent. In fact, there are many patents on recipes/processes. Sponge cake that can rise when microwaved, confections that swim in a carbonated beverage and a patent on storing peanut butter and jelly in the same container, are some examples.
Besides patents, trademark law may help to protect brand names, logos or catchphrases of food products. Furthermore, trade dress law can protect, for example, the packaging, shape or appearance of food products, as far as they identify the origin of the owner’s products, like for example a Coca Cola bottle. In fact a major case in the development of trade dress law dealt with a restaurant.
In Two Pesos v. Taco Cabana one Mexican restaurant took another to court because the decor was almost identical to theirs. The Supreme Court ruled that decor could function as trademark and thus be protected.
A last line of defense for chefs, food producers and others, is the trade secret. Instead of officially registering the recipe or process, one tries to keep it secret. A trade secret is something that is only known by the owner, which creates an advantage over competitors. Well known examples are the recipes for Coca Cola and KFC batter.
It's up to the owner to make sure the secret stays within the kitchen. This may not always be the easiest thing to do, but when all reasonable measures are taken, and the recipe is nevertheless stolen, there can have far reaching consequences.
Cinnamon Stephens, a copyright lawyer working in Seattle and Amsterdam, gives an example: "In the US the theft of trade secrets is criminalised under the Economic Espionage Act and may lead up to 10 years in prison or significant fines."