19 September, 2014

Can You Own a Recipe? When Food Meets Intellectual Property Law

Food is quite important to all of us, and not just because of its nourishing quality and necessity for life, but also for the sheer enjoyment of a dish which has been prepared with care and love. This writer for one will freely admit that he loves to both cook and eat (often the latter more than the former), which prompted me with a thought in the process of seeking out recipes to make: can you own a recipe, or if anything, are recipes protectable under intellectual property law? Upon initial thinking the question seems to beg an answer, since recipes are undeniably creations of great creative efforts, planning, knowledge and skill, which, prima facie at least, should afford it some level of protection. This aside, food is ubiquitous to all cultures, peoples, and as said above, a necessity, which would render their protection draconian or even preventative of the enjoyment of cultural aspects for the larger masses should recipes be isolated to only a select few. The question indeed deserves an answer, and I shall endeavor to do so below, separating the matter into each type of intellectual property.

Recipes and Copyright

Often people's first memories of recipes is a dusty old tome which their grandparents have kept and compiled over the years, containing family recipes and secrets from generations ago. Whether it is Gordon Ramsay or your lovely grandma, recipes take effort and skill to create and compile, being put into tangible form either on paper or online. Under the UK Copyright, Designs and Patents Act 1988, and similarly its US, Australian and Canadian counterparts, copyright protection is afforded to original literary works; however this protection is given to the expression of those literary ideas, not the ideas themselves (expanded more on this very blog here and here). Recipes, therefore, potentially could be protected under copyright should they be expressed in a very specific or original manner; however the ideas of the recipes themselves (for example the concept of a pancake) cannot be protected by copyright.

Some recipes are more 'original' than others
This was specifically discussed by the Australian IPO (link leads to an external PDF file), which this writer thinks is an accurate representation of the laws' applicability in most common law countries: "[t]he owner of copyright in a recipe has certain limited rights to control the manner in which their written recipe is used. This does not include, for example, preventing people from making the dish, or from writing their own descriptions of how to make it". To expand on this, the individual or entity can protect their recipe to an extent, but cannot prevent others from making that particular dish or writing down their version of the recipe. As expression is protected, and not ideas, mere techniques, information on ingredients or methods or the 'idea' of an overall recipe cannot be protected.

Copyright leaves recipes quite exposed, but does offer some level of protection should someone try to use your recipe which has been published in a book or in another protectable form. However should they want to publish their own version or efforts, even writing down a specific recipe in their own words after following someone cooking it, they are free to do so.

Recipes and Trademarks

The names of dishes can be quite valuable, especially if they gain a high level of traction. A famous dish can be highly desirable to protect in name, and under the UK Trade Marks Act 1994 (and similarly under its American, Australian and Canadian counterparts) a sign, an indicator of a goods' origin, can be protected, which easily encompasses the names of dishes or recipes. A recent example of this is the fabled Cronut, a mixture between a croissant and a donut, which became seemingly huge overnight. Arguably the recipe for a Cronut can be very valuable, and many have shared their takes on the item, but what truly brings protectability to the doughy foodstuff is its name - something its creator trademarked promptly. As illustrated above the idea of a Cronut is not protectable as is, but the name does prevent others from selling the item under the recognizable moniker, which is very often more valuable than attempting to prevent the use of a recipe. 

This is not to say protecting a dish or a recipe can result in a positive outcome. Last year a Vietnamese restaurant in London faced some backlash after it asserted its trademark on the dish "Pho", albeit used in the restaurant's name rather than as a means to protect a specific recipe. Whether it is a food related name or a distinct recipe with an elaborate or distinct name, trademarks do serve as a great tool to protect recipes, yet are limited to only truly distinct cases, as one cannot simply just trademark a common recipe or dish.

Recipes and Patents

The more interesting choice of the three was an option this writer had never even considered; patenting a recipe. More often than not patents protect inventions, which encompasses a very wide array of things, but one would never think of a recipe as an 'invention' no matter how inventive the approach can be. Nevertheless, this is still quite possible, although any aspiring food patent seeker will be fighting an uphill battle at best.

Intricate methods of cooking often lead to mixed results
Under the UK Patents Act 1977 for an invention to be patentable it has to fulfill certain criteria: it has to be something new; involve an inventive step; and be capable of industrial application. On the face of things a recipe could be exactly that, and fall under each category; however one can imagine this would pertain more to an industrial recipe, rather than a single kitchen in a single restaurant. A good example of a food related patent is Cadbury's patent for chocolate that doesn't melt (and for the sake of balance Nestle's equivalent is here). The recipe clearly calls for a specific method of creation, a way to make the recipe, rather than the recipe itself. Chocolate is way too common for it to be afforded patent protection, but a novel way to produce chocolate could easily be patented if it falls under all of the requirements. For a great in depth look at the matter in the US, please do read Gene Quinn's article, which covers recipe patents under US law very comprehensively.

Patents are a tougher sell as a method for protecting recipes, but are still quite viable and an option should you dish be created in a very unconventional, new way, and possibly include a more industrial approach rather than one which relates to looks or flavor alone. It won't protect the recipe per say, but it will protect the method through which that recipe is produced.

Conclusion

In short, can you own a recipe? Yes and no. To own a recipe in its most truest sense, it seems nearly impossible under current intellectual property laws, and rightfully so, since no nation would want to deprive its citizens of the multifaceted world that is the culinary world. One can easily own an aspect or two to a recipe, for example its name or a specific structure if it entails a strict layering process for example, or even a printed recipe, but the limits the law imposes on those rights are very strict and nuanced. Being able to buy a lasagna outside of a certain restaurant in Italy is truly a blessing for us all, and we can take that availability for granted.

A message to all aspiring chefs and current culinary professionals: focus on the quality of your product rather than its protectability under intellectual property law.

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