Legal protection for recipes--bad news for British bakers

We have become a gastronomic nation, with an abundance of celebrity chefs, a seeming deluge of cookery programs and thousands of food related blogs. But, although nourishment is big business, does anyone actually own the rights to food and drink recipes? Paul Jordan, partner, and Sean Ibbetson, associate, at Bristows, take a look at the legal aspects of recipe protection.

What protection can chefs and producers place upon their recipes and practices?

It is incredibly difficult for chefs and food producers to protect their recipes and practices using intellectual property law.

If a chef or manufacturer can keep the ingredients of a product confidential they may be able to benefit from protection as trade secrets. However, this is only feasible in certain, limited circumstances (discussed below), and does not prevent a third party from attempting to reverse engineer that product.

It is also theoretically possible for a process for the manufacture of a food product to be protected by patent law. However, the usual requirements of patentability pertain, so the manufacturing process could not be obvious to other food manufacturers, based on what is already known by those in the industry. Patent protection lasts for 20 years, so chefs and producers could only protect their novel process for a limited period of time.

Would it be possible to copyright a recipe in the UK?

No, any copyright that subsists in a book of recipes would not be infringed by the act of making a dish according to one of the recipes. The ingredients of the Pechu sandwich which was the subject of US litigation (which combined chicken, lettuce, tomato, cheese, and mayonnaise on a bun) would not benefit from copyright protection in the UK.

There might be limited copyright protection available for the typographical arrangement of a recipe book (ie the layout of the text). However, this will only prevent unlicensed scanning and photocopying of the book--the copyright would not be infringed by making a dish according to one of the recipes, or even utilising the same recipe in another cookery book.

How can chefs and food producers utilise trade secret protection?

It is possible to utilise trade secret protection provided that the ingredients of a product can be kept confidential, and that the confidential information is not imparted to third parties (without placing an obligation of confidentiality on those third parties). This might work for the 'secret' ingredient of a sauce, or the Coca Cola formula, but it does not prevent a third party from trying to reverse engineer the product in order to compete.

It's also, obviously, not appropriate for something such as a sandwich whose ingredients are clearly not a secret to anyone who sees it or consumes it.

To what extent can chefs challenge the re-use of recipes on competing blogs or cookery books?

To a very limited extent. Chefs are required to accept some level of 'copying' of their recipes (unless the recipe is scanned in from one of their books and reproduced on the blog).

Looked at from another perspective, this means a chef is free to be inspired by any other chef's recipes, and to incorporate those ideas into their own repertoire. So this shouldn't leave a bitter taste in anyone's mouth.

Paul Jordan is a partner in the intellectual property department specialising in brands and advertising law. Though his experience covers the full range of intellectual property issues (both contentious and non-contentious), Paul's work focuses on advertising regulation, content licensing, and trade mark and copyright infringement.

Sean Ibbetson is an associate in the intellectual property litigation department. His experience covers both contentious IP matters and non-contentious advertising advisory work. Since joining Bristows he has also spent time on secondment to the in-house legal teams of clients in the internet services and travel sectors.

Interviewed by Alex Heshmaty.

This article is republished with kind permission of WIPIT’s sister site, Lexis®PSL IP & IT. For a free trial click here.

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