You can protect your restaurants brand but can you protect the dishes your chefs create and serve?
Instagram has triggered a boom in the sharing of food-related pictures and it’s not only amateur chefs getting involved. Professional chefs are also turning to social media to promote their latest creations and, according to industry gossip at least, pick up some new ideas.
While chefs ‘taking inspiration’ from their peers is nothing new, the immediate global reach of a social media post is heightening tensions at the upper reaches of the culinary world as some of the world’s most pioneering chefs are watching their best ideas being picked up and replicated.
Obviously, a chef’s livelihood absolutely depends on creating a demand to buy their food or visit their establishments amongst their patrons. But if their signature dishes are available elsewhere, that could have a damaging effect on their business. The easy answer is to simply stop sharing altogether but that would simply close off what is now a vital marketing tool for privately owned restaurants.
Unfortunately, recipes are challenging to protect in law. Many traditional methods for protecting other forms of intellectual property often fall short where recipes are concerned. So how can chefs and restauranteurs legally protect their latest creations?
Here, we’re going to take a quick look at the potential options – copyright, trade mark, patent and trade secret laws – and assess whether they could legally protect a recipe.
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. Copyright protects the expression of an idea, not the idea itself and does not protect against someone else independently developing the same idea, only against the actual copying of another’s work.
In addition, as many dishes and cooking techniques are developed over time by different people in different regions, with ingredients and methods involved which are already publicly available and being used all over the world, it could be hard to prove that a recipe or dish is “an original creative work”.
This means that while copyright will probably protect any recipe books in which a recipe features from being unlawfully reproduced, it is unlikely to be able to protect an individual recipe or the taste of a dish itself.
A trade mark
A trade mark is designed “to protect a recognisable sign, design or expression” which identifies a particular product. Usually, within the food and drink sector, the trade mark will be an expression of the product’s name or logo, trading style or packaging but a trade mark can also consist of the shapes of products or their packaging, colours associated with a trading style as well as sounds, smells and slogans.
However, it is more difficult to register these marks, as Cadbury recently found out when it lost the right to trademark the particular shade of purple for being “the predominant colour” in its chocolate packaging).
Registering a trade mark can be a useful tool in creating and establishing a brand, which can be used to help prevent competitors from stealing the name of your famous dish but trade marks can’t protect the component parts of a recipe or how the dish itself looks (because it would be tough to prove that a dish looks so different as to be distinguishable) or tastes (because a taste is not capable of being represented graphically).
Patents protect new and inventive technical features of products and processes and 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”.
Patents do not arise automatically. To obtain patent protection, it is necessary to file an application for a patent before the invention has been made available to the public. The application for and, if successful, grant of a patent itself involves public disclosure of the invention, which could enable a competitor to develop a competing dish without infringing the patent. In addition, the grant of a patent is not automatic, and they can be expensive to obtain and maintain.
A trade secret is a valuable piece of information for an enterprise that is treated as confidential and that gives that enterprise a competitive advantage because of the information’s secrecy. Trade secrets are protected against unlawful acquisition, use and disclosure, provided that reasonable steps have been taken to keep it secret.
Recipes and cooking techniques which are not apparent from the final dish (or a photo of it) may be protected, but chefs and restaurateurs should have appropriate procedures and checks in place to keep their recipe secret and prevent it from being leaked or stolen.
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.
So where does that leave us?
Until intellectual property laws advance in a way that will provide more protection for recipe creations, we believe the best option is to protect your recipe as a trade secret or apply for patent protection (if your recipe or cooking technique is sufficiently unique).
With social media often playing a crucial role in marketing strategies, we suggest it may be better to carefully manage what you are posting and how, rather than retreating from social media altogether, keeping the accompanying commentary to a minimum so as not to disclose your secret ingredients, techniques or processes.
If you would like to discuss how to protect your recipe or your restaurant, bar or hotel’s brand, please contact Carys Tompson at email@example.com or call Carys on 0114 252 1485.