Is it possible to legally protect a food recipe?
Attorney Tyrone Walker delved into this interesting legal question. He said, “I act on behalf of a number of chefs and restaurants and a common question I often receive is whether they can protect a recipe or food product.”
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Firstly, Walker always recommends that the chef brand or name the new food product or recipe and then protect it. “There are so many great catchy names out there that relate to food items including ‘Whopper’, ‘Mcflurry’ and ‘Streetwise’. These food items are protected by means of a trademark.”
But the real question is whether the individual can protect the food product or the recipe?
According to Walker, if the recipe is written down and placed in a recipe book, the recipe will be protected by means of copyright law. “This will prohibit anyone from copying the exact recipe and publishing and selling their own book on the shelves.”
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However, he stressed that this does not stop someone from copying the recipe, cooking it in their restaurant, changing the name and claiming it as their own.
“Protecting the food product by means of a patent is very difficult. In order to protect any invention by means of a patent, it has to satisfy strict requirements. The law requires the food product to be novel and unique.”
A couple of questions that Walker would ask the creator or chef are, firstly, why the food product is unique; secondly, is there a unique way that the product is made and thirdly, would it be within the knowledge of someone to combine this ingredient with that ingredient?
“We also ask other questions such as, is it really not obvious to try the combination of food substances or mixtures and is the food product peculiar?”
Most food products or recipes are just adaptations of older products or recipes and thus not unique or novel. He added that many recipes are kept a secret by their owner and will, therefore, not be published or released to the public.
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“The formula for Coca-Cola is an example of this and sometimes this secret can be referred to as confidential information or a trade secret. Employees and contractors of Coca-Cola will sign a confidentiality agreement which will stop them from releasing or leaking the confidential recipe to the public.”
He concluded that it is exceptionally difficult to protect a recipe or product. “I always recommend protecting the name by means of a trademark and, if possible, signing a confidentiality agreement with any suppliers or distributors.”
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