Preserving the Palate: Protection of Culinary Creations under the IP Landscape

Introduction

In common belief, the culinary industry is often considered a representation of derivative art. However, with the advancement of culinary techniques and creativity of chefs across the globe, the world is witness to innovative creations in the industry more often. Consequently, the creators can claim protection of their novel creations under diverse forms of intellectual property laws. These include signature dishes, the unique ambiance of a restaurant, distinct recipes and even the artistic representation or plating of dishes can be protected under IP laws. However, in the culinary world, the line between inspiration and plagiarism can become blurred, many a times resulting in blatant copying and dilution of the creative input behind innovation of  novel recipes and dishes and other unique culinary creations. Hence, the legal protection is warranted even in the food space. In this article we delve into the culinary world and attempt to gain an understanding of different means of protection for novel culinary creations under IP law.

Copyright protection

Creative ideas and creations can be protected under the copyright law, provided they are fixed in a tangible form and are original expressions of an idea and not an idea itself. When examined under the perspective of the culinary industry, creations like novel recipes, food art or even food related content enjoy copyright protection. However, since the food creations are usually consumable, they can receive copyright protection only if it comprises substantial tangible characteristics which reflect significant creativity and can be separated from the food’s inherent utility. 

For example, the Mondrian cake's design(image to the left), although inspired from a painting, comprises apparent original artistic elements. While the cake is a consumable dish and it is not fixed on a permanent medium, the artistic features of the cake appear to be isolated from the utility of the cake i.e., the ability to eat the cake, taste of the cake etc. Therefore, such a creation serves as an excellent example of the criteria any food dish must fulfill to enjoy copyright protection.  

Further, another contentious culinary creation which has been the subject matter of several IP disputes are food recipes. Recipes are essentially a list of ingredients and a set process to create a culinary dish from those ingredients. Since, the Copyright law does not protect ideas, the United States Copyright Office Compendium provides that “merely listing ingredients or contents is not copyrightable and neither is listing a simple set of instructions” Building upon this. it was held in the case of Tomaydo-Tomahdo, LLC v. Vozary that “a list of ingredients or instructions are merely factual statements and facts are not copyrightable” However, an exception to this rationale as provided vide the aforementioned compendium is that “a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable” . In view of this, many food recipes as part of online content or recipe books are supplemented with substantial literature like the story behind the creation of the recipe, or literary description of the history behind the germination of the recipe, with the intent to enhance the novelty of the recipe and distinguish it from the other recipes.

In the case of Feist Publications v. Rural Telephone Services Co., the court laid down the scope of protection enjoyed by recipes. It was observed that the copyright protection of compilation of recipes is restricted to the specific elements which are not mere factual statements of ingredients or process. Therefore, it is well settled that since recipes are factual compilation of ingredients and process of using those ingredients, they cannot be copyrighted, and only specific elements of it, that do not constitute as facts (traditional history behind the recipe etc) can be protected.

Thus, it is evident that any creation in the nature of art or dishes may be secured under the domain of copyright, however surprisingly recipes which are essentially literary works, can be protected in a restricted manner under the copyright law.

Trademark protection

It is common knowledge that trade mark protection can be sought for distinctive name of  foods products, restaurants etc. In addition to the same, the scope of trade mark protection within the culinary world also extends to the design and appearance or the “trade dress” of any food product, provided that the design is not functional and has gained recognition as a source identifier or garnered sufficient secondary meaning. The trade dress of renowned food  products like Goldfish Crackers, Milano Cookies, Hershey's Kisses chocolates etc. have been registered as  a trade mark. 

[The configuration of “Milano Cookies” is protected in the USA under number 77836284]

The famous Mondarian cake, though a dish, is also eligible for trade dress protection since its design is non functional and due its unique rendition of the famous painting, it has gained enormous recognition amongst the public. 

Further, through the case Two Pesos v. Taco Cabana the Supreme Court of the United States of America, widened the scope of trade mark protection for restaurants. It was held that the decor of a restaurant can also be protected as a trademark, provided it has acquired sufficient distinctiveness and recognition amongst the public.  Thus, in contrast to the popular opinion there are various elements in the culinary industry, including even the ambience of a restaurant,  which can be exclusively owned and further protected from any infringement. 

Trade secrets 

It is pertinent to note, since recipes are the essence of any culinary creation, it is imperative to ensure protection of the same. However, trade mark or copyright protection may not suffice as an adequate method of  protection for protecting innovative recipes, despite their uniqueness and originality, leaving a gap in the IP law with respect to culinary creations. The last resort for chefs is maintaining protection of these recipes as a trade secret. While trade secrets are not governed by any legislation per se, it proves to be the most effective method for recipe protection.

A trade secret is any information honing immense commercial value is protected as a secret which is usually known to a very limited amount of people. The formulae for Coca Cola, the sauce recipe of Dominos pizzas, the recipe of KFCs fried chicken are well kept trade secrets for decades and possess immense economic value. Further, the essential criteria for any information to qualify as a trade secret was laid down in the case of  Li v Shuman, where it was held that the most significant characteristic of a trade secret is not a novelty but secrecy. Hence, in contrast to the other laws of protection of IP, any information, even if not novel, can be protected as a secret provided it is of significant economic value. It is a common practice for restaurants to protect their recipes through trade secrets and non-disclosure agreements. 

While the risk of disclosure is pertinent, protection of recipes as a trade secret is a commonly followed practice, especially since no adequate alternative for legal protection is at disposal for chefs. 

Conclusion

With increase in the commercial value that culinary creations like signature dishes, innovative recipes possess, the IP protection of the same can positively influence the culinary industry by averting attempts of blatant plagiarism and encouraging chefs to develop novel, distinctive, and innovative culinary creations. The copyright, and trademark laws, though strong mediums of protection come with inherent limitations that may restrict the subject matter of protection. However, the IP law encompasses abstract methods of protection as well like the trade secrets which allows for protection of diverse culinary creations, but may lack enforceable prowess as compared to the other forms of protection. Hence, due to lack of any sui generis system or guidelines for the protection of culinary creations , protection of the same is restricted to the aforementioned laws and solely depends on the nature of the creation.