In today’s world of celebrity chefs, craft cocktail mixologists, and experiential dining restaurants, unique culinary creations (for non-foodies, “recipes”) have become a valuable business asset. And, as with any other valuable business asset, commercial litigators will be tasked by their clients with protecting these assets. The question for commercial litigators will be how.
In some respects, recipes should be tailor-made for intellectual property protection. New recipes are “invented” by highly educated and trained chefs (patent), marketed by restaurants under distinctive names like the Big Mac® or the Whopper® (trade-mark), described in flowery language in best-selling cookbooks (copyright); and closely guarded by restaurants to protect a competitive advantage like the “secret eleven herbs and spices” at Kentucky Fried Chicken (trade secrets). In reality, though, establishing any intellectual property rights, much less protecting them, in a recipe is challenging. Indeed, “stealing” another chef’s recipe (and of course putting your own “take” on it) is a time-honored tradition in the food service business.
As a practical matter, there are significant limitations on the protections that intellectual property can provide to the creator of a recipe, and it can only help those restaurants and chefs who are willing to take the steps necessary to protect their creations. Indeed, no matter what the creator of a recipe may claim, the vast majority of recipes are simply different combinations of familiar ingredients that come together in a way that is generally expected. For example, although your grandmother may make the sweetest brownies you have ever had, everyone knows this is because she uses more sugar. Most recipes, even secret family recipes, are not truly novel, and patent protection, therefore, is rarely available. As for trademark protection, all it can protect is the distinctive name (such as Oreo®) or appearance (such as the teardrop shape of a Hersey Kiss®) of a product; it provides no protection for the recipe itself.
Under the right circumstances, though, a party who believes it owns a valuable recipe can use copy-right law or trade secret law to protect it. Which one of these protections it should rely upon will depend on how the recipe will be monetized. For example, a celebrity chef can publish a cookbook with his or her recipes and profit from the book sales. Of course, this will require the chef to reveal the “secret” recipe to the world at-large. Alternatively, a restaurant that believes it has a truly “secret” recipe for a popular dish that gives it a competitive advantage can use trade secret protection to prevent its employees from stealing the recipe and using it in competition.
Regardless of which type of protection a business relies upon, though, there are unique challenges in protecting a recipe based on its very nature—a combination of ingredients and cooking methods that are developed through the trial and error process of cooking. Courts have examined these issues as far back as 1924, and the rise in popularity of cooking shows and celebrity chefs have led to an increased number of cases in recent years. There, however, is still a dearth of cases that analyze the circumstances under which a recipe may be copyrightable or protected as a trade secret. Even more, there is no consensus among the courts that have looked at these issues as to when a recipe is entitled to protection. The purpose of this article is to identify those challenges so that counsel can develop strategies to deal with them in litigation.
The complete article, "A Recipe for Success: Intellectual Property Protection for Recipes," first appeared in the Winter 2019 issue of The Licensing Journal.