Can You Protect Your Recipes? Intellectual Property Protection for Recipes

In today’s modern era of creativity, cooking is often regarded as an art. For enthusiasts, celebrity chefs, and mixologists, many have wondered whether they can legally prevent people from copying their recipes. Generally, recipes include a combination of ingredients and cooking methods created through trials and errors. The recipe form, ownership, monetization, and method of monetization are factors that determine the best way to protect recipes. This article dives deep into the intersection between Intellectual Property (IP) Rights and recipes and how valuable IP Rights can be in protecting recipes. It answers the pertinent question, can I protect my recipe and tasty creations?

Copyright Protection of Recipes

Copyrights give the authors or creators an exclusive right of original works of authorship fixed in a tangible form of expression. Typically these works include literary, artistic (dramatic), and musical works. Copyright protection will only cover creations that are not intangible. Thus, copyrighting a recipe is only possible when expressed literally. A recipe classified as a literary work for legal purposes does not prevent another party from applying it to make a dish. Hence, copyright protection can only protect the written recipe from being republished and not the recipes themselves. Same with a cookbook.\ Even a slight change in the order of the ingredients to reproduce a cookbook will devoid the initial recipe from enjoying copyright protection since food ingredients are not exactly creative works. However, a chef may add creativity to the cookbook and strengthen copyright protection by including an original literary commentary. Additionally, the chef could use creative methods in selecting the recipes rather than just listing ingredients. Also, food tastes cannot be copyrighted since food taste is not an expression of “work.” Ghanaian copyright law states that for a work to be eligible for copyright protection; it must:

1. be original;
2. be fixed in any definite medium of expression known or to be developed. The result is that the work can either directly or with the aid of any machine or device be perceived, reproduced, or otherwise communicated;
3. the work must be created by a citizen or a person who is ordinarily resident in the Republic, first published in the Republic, and in the case of a work first published outside the Republic, is subsequently published in the Republic within thirty days of its publication outside the Republic.Consequently, a recipe would qualify for copyright protection in Ghana once it satisfies the Ghanian copyright law. However, the United States of America has a slightly different requirement concerning the provision for compilation copyrights which is a variant of copyrightable work that is a collection of already existing works in such a way that it has originality.
4. Hence, a cookbook could potentially be protected by this type of copyright in the U.S.

Patents Protection of Recipes

A patent is a more suitable option for IP protection of recipes when compared with copyrights. However, it is not easy to patent a recipe because one would need to prove novelty and inventiveness when applying for a patent. Hence, it would be nearly impossible to prove that the recipe has not been used by anyone anywhere and that the recipe could not have easily been used or discovered by anyone skilled in cooking. Patents work best for new food production methods like faux or plant-based food for vegetarians, e.g., faux chicken, substitute beef, or plant-based cheese. If your recipe only involves arriving at foods due to cooking or combining ingredients, it will likely not meet the novelty requirement. Additionally, a patent is territorial, and hence, a patent granted in a country will only protect the inventor’s rights within that country. Section 35 of the U.S.A. Patent laws say that whoever invents or discovers any new and useful process, the machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent, therefore, subject to the conditions and requirements of this title.- (35 U.S.C. 101). By this provision, recipes can be a subject matter of patent protection as long as the inventor can prove that their recipe is ‘new and useful’ along with all other patentability requirements. If a chef finds a new or inventive way to make mint tea using an extraction process that has never been used before, such discovery would be eligible for patent protection under U.S. laws. Under section 1 of the Nigerian Patent and Design Act, similar provisions exist in Nigeria. Different elements of the food sector, ranging from composition to food making, are broadly covered by patents. Ingredients, processing methods, packaging, and products can be patented if they satisfy the legal requirements under the Patent Act. Section 1 of the Patent Act provides for patentable inventions;

• New or an improvement upon a patented invention
• The result of inventive activities
• Capable of industrial application

Patents grant you the sole right to make, import, sell, or use the product or process for 20 years under Section 7 of the Act. You have to give a detailed description of the relevant invention in return. Hence, if you intend to keep the process and recipe secret, a patent might not be the best choice.

Trademark Protection of Recipes

Trademarks typically protect names and logos; they are any word, phrase, design, or combination of words that identifies your goods or services and distinguishes them from the goods or services of others. Marks used to identify services are called service marks. When it comes to the culinary space, trademarks work best to protect the name of a dish rather than the recipe itself but only if you plan to sell the dish to consumers. Trademarks would be helpful for brand names and slogans of food production businesses rather than for the food recipes themselves. Brands like Oreos, Indomie, Coca Cola, and Mr. Biggs have trademarks. A good example is Macdonald’s ‘Big Mac,’ a brand name for a hamburger made by McDonald’s. In Nigeria, The Trademark Act in section 67 says that trademarks should be used in goods to indicate a connection between a person or business and the goods (in this case; food), and the trademark must be in use for five years; else anyone can apply for it to be revoked, including your competitors.

Trade Secrets Protection of Recipes

A trade secret is any business information with commercial value derived from its secrecy. It is a piece of insider information that gives a business a competitive advantage. Many chefs rely on trade secrets to protect their recipes because it is the one I.P. protection that proves to be the most potent. Famous companies like Coca-Cola and K.F.C. have protected their formulas through trade secrets. The recipe details are kept confidential by trade secrets combined with enforcing non-disclosure agreements with contractors, manufacturers, and employees who gained knowledge of the recipe during their employment. Trade secrets would be ideal for a chef who wants to prevent other people from using the recipe or remaking a dish, especially because trade secrets do not need registration to enjoy protection. Trade secrets protection is perpetual and does not end. However, this protection only lasts as long as a competitor cannot figure out the recipe independently. Once it is disclosed, the value of the trade secret is lost, and all the owner of the recipe can do is request compensation or initiate a civil suit against the recipe thief. U.S. Courts have adjudicated that physically limiting access to the recipe can constitute trade secret protection. In Peggy Lawton Kitchens, Inc. v. Hogan (466 N.E.2d at 139, 141), the plaintiff’s cookie recipe was held to be a trade secret because there was evidence that the plaintiff had locked away the recipe in a safe and only gave limited information about the recipe to their long-term employees. Another method that indicates a recipe is a trade secret is if parts of the recipe are kept separately. For example, K.F.C. has one half of their recipe prepared by one company and the other half mixed by another company. A third company combines both recipes in a separate location.

Conclusion

In conclusion, IP protection is available for that recipe you have. However, this will depend on the recipe type and the exact interest you are trying to protect. Furthermore, your jurisdiction also plays a huge part in determining the kind of protection that would be obtainable for your recipe. According to what is obtainable in the US, Ghana, Kenya, and Nigeria, patents would most likely not protect your recipe because of the ‘novelty’ requirement. Neither can a trademark because it can only safeguard distinctive names like “pringles” or “coca-cola” and not the recipe itself. However, copyright and trade secrets can potentially protect your recipe depending on whether the recipe will be monetized as a cookbook or as dishes or meals for sale. Hence, Trade secrets work best to protect a restaurant with a secret formula against competitors to give them a competitive advantage.