What to do if your food products are copied

Carys says: “There are several possibilities, although food products can be challenging to protect in law. Many traditional methods for protecting other forms of intellectual property often fall short where recipes are concerned.

“Copyright will protect an original idea once it’s been physically expressed by granting the creator of ‘an original creative work’ the exclusive rights to say how that work can be used by others.

“However, copyright protects the physical expression of an idea, not the idea itself and does not prevent someone else independently developing the same one. This means that, for food products, copyright may be able to protect a recipe within a published book, or the name, graphics or description used on packaging, but it is unlikely to be able to protect an unpublished recipe or the taste of a dish itself.

“A trade mark is designed to ‘protect a recognisable sign, design or expression’ which identifies a particular product.  If the product’s name or logo, trading style or packaging has been registered as a trade mark, this can be a useful tool in creating and establishing a brand and taking infringement action against competitors.  M&S has just last week launched legal action against Aldi, claiming that Aldi’s Cuthbert the Caterpillar cake infringes its Colin the Caterpillar trade mark.

“However, trade marks cannot protect the component parts of a recipe or how the dish itself looks or tastes.

“A passing off action may be possible if the small business can establish:

  • goodwill attached to their products by reason of some identifying ‘get up’ (often, but not necessarily, a brand name);
  • a misrepresentation to the public (whether or not intentional) leading, or likely to lead, the public to believe that the goods or services are those of the small business (or are associated with the small business); and
  • that they have suffered damage as a result.”

Carys adds: “An action in passing off may be brought by anyone who has generated goodwill by trade with consumers in the UK, but this can be a difficult hurdle for new businesses and/or new products to overcome.

“Patents can be used to protect a recipe in certain circumstances. To qualify for patent protection, the recipe (or more likely, the cooking technique) must be new, involve an inventive step, be capable of industrial application and not specifically excluded from protection. It must be both novel and not ‘obvious to someone skilled in the art of cooking’. If a patent has been obtained for the product in question, the small business could bring an action for infringement.

“A trade secret is a valuable piece of information for a business that is treated as confidential and that gives that business a competitive advantage because of the information’s secrecy. Recipes and cooking techniques which are not apparent from the final dish (or a photo of it) may be protected as a trade secret against unlawful acquisition, use and disclosure, provided that reasonable steps have been taken to keep it secret.

“Trade secret protection has worked extremely well in protecting the recipes of several well-known products in the food and drinks sector including – Coca Cola, Krispy Kreme and KFC.

“We recommend requiring a non-disclosure agreement (NDA) to be signed by the big business before any information concerning the new product is disclosed or any detailed discussions take place.

“Carefully drafted NDAs can act as a strong deterrent against big businesses misusing a trade secret, provide evidence that steps have been taken to keep it secret and can give rise to an action for breach of contract/indemnity.”

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