Many enterprises maintain their market domination through their Intellectual Property Rights. For instance, Coca- Cola maintains its market dominance through its extremely valuable secret formula. People recognize McDonald’s because of its well-known logo.  Owners of Intellectual Property Rights depend on Patent, Trademark, Copyright, or trade secret laws in order to protect their creations. The food and beverage industry also involves several aspects of intellectual property law. The world’s culinary traditions are collective inventions shared by millions of chefs, and it is common for one to borrow recipes and cooking methods from others, which could be subject matter of Intellectual Property protection.

It is often said that food is an art; if so, from an intellectual property perspective, it may certainly be a new art. Just as Stand-up comedy is a revolutionary form of art, Food may also be viewed so, as art is an evolving concept. The visual presentation, arrangement, appearance of food, or the plating of dishes are also an expression of creativity.

At present, intellectual property laws in India do not specifically cover the protection in respect of preparations of food or beverages.

As far as appearance of a food product or its packaging is concerned, protection may be sought as a trade dress.  A trade dress, which includes the distinctive packaging, shape or color of the product and enables consumers to identify the source of the product would qualify as a ‘trademark’ within the meaning of the Trademarks Act. An example of a trade dress would be the shape of the Coca- cola bottle or packaging of Cadbury. While trade dress protection concentrates on the packaging or overall exterior of the product and not the actual food, one can easily identify the source of the food just by taking one look at the package.

As far as Copyright law is concerned, it protects works of literary, dramatic, musical or artistic nature under the Indian Copyright Act. A culinary work may be considered a ‘work of artistic craftsmanship’ under Section 2(c)(iii) of The Copyright Act, 1957, in as much as effort, creativity and thought of the creator goes into the presentation of the dish, not taking into consideration, the foods’ utilitarian function. While a written book on recipes and cooking blogs would be considered ‘literary work’ under the copyright law, it gives no protection to the end product, that is, the actual dish. A recipe per se also may not be entitled to copyright protection as proving originality criteria may be difficult.  When we examine laws on copyright in the US, we can see that the idea of a copyright to culinary works was once rejected. In the case of Baker v. Selden[1], it was held that because recipes are traditionally reproduced to be used for cooking rather than for their literary or artistic value, they are not considered susceptible to copyright protection.

Patents in the food industry exists more on utensils, equipment for cooking, production processes and technologies. There are also increasing number of patents filed in health food industry especially for dietary and nutritional supplements and high protein food products. The influence of biotechnology in food industry has also resulted in research and development focused on food processing and consequent patenting of the technology, process or product. However, patent law often rejects chefs’ creations as non-patentable subject matter. Utility patents require a high standard of novelty and a recipe rarely qualifies this, especially if the dish is made from ingredients that are already known. To merit a patent protection, a dish must satisfy the criterion of non-obviousness and novelty, within its cooking technique. Even so, rarely is it that food and beverages get patent protection as an invention. The reason for this is that the criteria for non-obviousness is difficult to be met and the process for preparation will more or less be already known to an expert in this industry. Further, recipes are often combination of commonly known ingredients and hence may be considered obvious. A patent examiner would scrutinize each and every element of the dish and only if the combination is so unique or involves a technical step which is entirely new, would the same qualify for a patent. Hence, the chances of a recipe, flavor or ingredient getting patented are less. They are mostly kept as trade secrets within the organization and disclosed only to personnel on a need-to-know basis, under terms of strict confidentiality. The obvious disadvantage of keeping a recipe as a trade secret is that unlike patents, there is no protection against reverse engineering or independent derivation of the recipe by another.

In India as there are no proactive legislations with regard to trade secret laws, the protection is more or less based on contractual agreements and common law remedies. The methods of protecting a trade secret apart from confidentiality agreements are: safekeeping of recipes, limiting the number of people who have access to the recipe or method, and limiting access to the actual ingredients or processes. Some high end restaurants protect their creations by asking their customers not to take pictures of the food, as the new trend of “foodstagram” exposes their creations to be copied. [2] While this may be a selective request, it is not entirely a foolproof protection against reverse engineering.

It is the transient nature of food and the fact that there almost always exists a prior art in the industry, that makes it difficult for a chef’s creation to get protection under IP laws. However, with food increasingly gaining acceptance as art, the laws are also expected to evolve and protect the culinary interests of people.

By Shilpa

www.puthrans.com

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[1] 101 U.S. 99 (1880).

[2]  Helene Stapinksi, “Restaurants Turn Camera Shy,” The New York Times (Jan. 22, 2013), at

http://www.nytimes.com/2013/01/23/dining/restaurants-turn-camerashy.html?pagewanted=2&pagewanted=all& r=0