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?
Firstly, I always recommend that they brand or name the new food product or recipe and then protect it. There are some 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 trade mark and are often protected in most countries in the world as soon as the name has been created.
But the real question is whether they can protect the food product or the recipe?
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. However, this does not stop someone 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, we would ask the creator or chef – Why is the food product unique ? Is there a unique way you make the food product ? Would it be within the knowledge of someone to combine this ingredient with that ingredient? Is it really not obvious to try the combination of food substances or mixtures? Is the food product peculiar?
As you can understand, most food products or recipes are just adaptations of older products/recipes and thus not unique or novel.
Many recipes are kept a secret by their owner and they won’t be published or released to the public. The formula for Coca-Cola or Coke 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.
In summary, it’s very difficult to protect a recipe or product item. I always recommend protecting the name by means of a trade mark and if possible signing a confidentiality agreement with any suppliers or distributors of the food product/recipe.