Protecting Recipes with Intellectual Property Law
How Intellectual Property Law Can Protect Recipes and Food Creations
How do I protect my new recipe? Trademarks, copyrights, trade secrets, patents, and possibly other forms of intellectual property (IP) law can be used to protect food creations and recipes. You should think beyond just the recipe (list of ingredients and instructions how to make the food item) to how the recipe is presented to users. Other aspects of the recipe that may be protected include the name of the website or publisher of the recipe, the artwork including photographs associated with the recipe, confidential processes used to make the food item that are not discoverable by end users and also not shared publicly. The paragraphs below provide a discussion of the best type of intellectual property (IP) to use based on what aspect of the recipe you are trying to protect.
COPYRIGHTS - Creative Expression of Ideas
Copyrights protect the creative expression of ideas and include visual arts such as photographs and literary works like a book. Copyright protection is the easiest form of intellectual property that can be used to protect recipes. Under the Copyright Act, a copyright comes into existence once the creative expression is “fixed in a tangible medium.” However, the owner of the copyright cannot enforce the right without first getting a registration from the copyright office. The process for obtaining a copyright is simply submitting an online application to the Copyright Office and paying the filing fee, which is less than $50. Typically, takes about 6 months to get a registration or a rejection. Hiring a law firm will cost between $500-$1,000 to handle the process.
So how specifically do you use copyright law to protect recipes? Some steps that will likely maximize your chances of success are using distinctive photographs and images you create yourself and include in the recipe. Video and other audiovisuals should also be considered. The written text of the recipe may also qualify for copyright protection if there is a sufficient amount of it — a short sentence is likely not enough to be copyrightable. Remember that copyright protection is limited exclusively to the creative expression of an idea, not the idea itself. That means the list of ingredients included in a recipe and how the recipe is made may not protected by copyright. See the discussion below on how trade secrets and patents may offer protection for this aspect of a recipe. You can find more information about copyrights in our post “What are the Basics of Copyright.” Finally, you should include a copyright notice on all of your materials. A common format is “© Year of Publication, Owner”.
Trademarks - Protection for the Source Identifier of Goods and Services
In addition to the text of the recipe, graphics, and audiovisuals protected by copyright, you can also develop a brand associated with the recipes that can be protected through trademark registration. While this form of IP will not protect the recipes themselves, it is a strategy to protect the source of the recipes (you). Trademarks generally protect the source identifier of goods and services and the goodwill associated with the source. For example, the Nike Swoosh is a well-known trademark. When you see the Swoosh you immediately know that product came from Nike and you will make certain assumptions about the product based on your previous relationship with Nike and its goodwill (good or bad). Nike has likely spent billions of dollars advertising and promoting this brand making it extraordinarily valuable.
Like Nike, recipe developers can establish a brand — such as a the name of their blog, a restaurant to which the recipes are associated, or an online store — and associate the source of the recipes featured with the brand. Next, a trademark application is filed on the brand with the United States Patent and Trademark Office (USPTO). The trademark process typically takes 8-12 months from the filing date of the application to get an initial response. You can either file the application yourself or you can pay a law firm to handle it. The price charged by law firms and solo lawyers will vary quite a bit. For our clients, we budget $2,500-$3,000 all-in including a search and assuming no substantive rejection. See our post on “What's the Trademark Registration Process and What Does It Cost?” for more information.
TRADE SECRETS - Information that provides a competitive advantage because it is secret
Trade secrets protect the competitive advantage of something invented or developed that is not known to the public and that has value to its owner by remaining a secret. One of the best known trade secrets is the recipe for Coca Cola, which has remained a secret since 1886. Unlike trademarks, copyrights, and patents, a trade secret isn’t required to be registered or applied for. It is valuable IP so long as it remains a secret. Steps to protect a trade secret once developed generally relate to limiting access to the information:
only disclosing on a need-to-know basis,
isolating the trade secret information,
password protection,
using non-disclosure agreements (NDAs) and confidentiality provisions in employment agreements,
confidentiality provisions included in contracts with vendors and independent contractors,
using NDAs with potential business partners to prevent improper disclosure or use,
filing suit where trade secret misappropriation has occurred to enjoin further disclosure or use.
For most, keeping a recipe a trade secret is the best approach since it requires no investment in legal costs. However, if the public — or a competitor — can determine the recipe or at least the “secret sauce” from publicly shared information or from the end product, a patent should be considered. While a patent provides a 20-year monopoly on what it covers, it also requires the disclosure to the world of the information associated with the recipe. As we discussed above, the recipe for Coca Cola has been kept a trade secret since 1886. Had Coke sought a patent, the wold would have known the recipe back in 1886 and the patent would have expired in 1906.
Patents - Novel combination of ingredients and methods of manufacture
Is it possible to seek patent protection for recipes? Or do you even want to seek patent protection? The short answer is, yes, it is possible to seek patent protection for recipes. Patent protection is available for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” according to Title 35 of the United States Code, Section 101. The ingredients being put together in a certain manner to create a food product may qualify as a “composition of matter” or “manufacture,” and the steps to make the food product may qualify as a “process.” For example, Kraft® has sought and obtained patents related to processed cheese and even methods for producing cheese wrapped in a single-slice form.
A recipe or the resultant food product may be patentable subject matter, but they must also be new and non-obvious according to Title 35 of the United States Code, Sections 102 and 103, in order to be patentable. If the recipe or the resultant food product is not previously known, it may be considered “new.” But if one would know how to create the recipe or the resultant food product based on knowledge of previously known ingredients, recipes and/or food products, then the recipe or resultant food product may be considered obvious, and thus, not eligible for patent protection.
To obtain patent protection, an application must be filed with the United States Patent and Trademark Office (USPTO), which discloses the invention. This poses the risk that you may never get a patent, but have disclosed to the world your secret invention. However, if you receive a patent, you would have the right to stop others from practicing your recipe covered by the patent for 20 years from the filing date of your patent application. For more on how patents can protect food items and recipes, see our blog post, “Can I, and Should I, Patent My Recipe?”. Patent applications generally cost between $10,000-$20,000 to prepare and file with the USPTO, and may take 1-5 years to obtain a registration. For more information on this process, see our post on “What is the process to register a patent? How do I get a patent?”
takeaways on Protecting Recipes with Intellectual Property (IP)
Whether professional or amateur, the least expensive route to protecting some aspects of a recipe is through publication on a blog, in a book, or in social media. This publication creates a copyright in the digital or print form recipe as written, which may offer protection for at least the photographic images and the text summarizing the recipe. You should include the copyright symbol on each recipe.
If you publish several recipes, you may want to consider compiling them into as book, which can also be copyrighted.
You can trademark the name of the source of your recipes like a blog name or business name.
If you have developed a proprietary blend of ingredients or method of manufacture, you will need to decide whether to protect those as a trade secret (e.g., the formula for Coke) or try for a patent (Tabasco).
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
© 2024 Klemchuk PLLC | Explore our services