Intellectual Property and Food

Anybody passionate about the culinary arts can vouch that cooking involves creative and innovative processes. A precise combination of skill, thought, and time goes into picking the right ingredients, creating the preparation process, and appealing plating. Considering this intensive effort invested in birthing a recipe and a dish, their protection through intellectual property (IP) law is certainly conceivable. While they may obtain protection under designs, trade dress, patents, and trade secrets, copyright is not typically applied in the field. Here is an overview of how IP has been used to protect culinary designs and recipes.

How can food be protected as a trademark?

It is common knowledge that the names of food products, chefs or restaurants can be protected by trademark law. Designs and appearances of a food configuration ("trade dress") can be trademarked, too, as long as the design is not one of utility and has garnered popularity amongst consumers as a source identifier ("secondary meaning"). Some examples are Hershey's Kisses and Pepperidge Farm's Goldfish Crackers.

Small food shops, cafés, and restaurants have also obtained trademark protection for the food they sell. New York-based Magnolia Bakery has obtained trademark registration for cupcakes with its iconic swirl icing and "icebox cake" made up of alternating layers of frosting and cake wafers.

Izzy's Ice Cream Café (now closed) received trademark registration for their iconic ice cream cones with a "baby scoop" of ice cream, called the "Izzy Scoop®". Izzy's had a disclaimer on its website asking those who imitate the "Izzy Scoop®" to license it through them. The Mondrian cake is also an example of a food configuration that could be entitled to trade dress protection.

How can food be protected under copyright?

Copyrights generally protect tangible expressions of creators' original, creative ideas. It does not protect creations of utility. However, copyright in food will only subsist if the tangible characteristics of the food are highly creative and separable (conceptually and physically) from the food's utility.

The Mondrian cake's design (image on the left) is original, although inspired by the painting (image below). The cake is transformative because it is an influx of pre-existing art with a new mode of expression. In terms of fixation requirements, the cake, while meant to be consumed and thus not fixed permanently in a tangible medium, still is an excellent example of the kinds of food that ought to obtain copyright protection since fixation only demands that work be perceived for longer than transitory duration.

Copyright law does not protect facts and formulae, which means that a list of ingredients in a recipe is not copyrightable, but a collection of recipes in a cookbook may be. These limitations facilitate culinary experts to borrow ideas from others or build upon them without infringing on somebody else's copyright.

How are recipes protected as trade secrets?

Culinary experts may rely on trade secret law to protect their recipe if it holds economic value and is of limited availability. However, it must be kept a secret. Examples of recipes protected by trade secrets include the process of manufacturing Coca-Cola and KFC's fried chicken recipes. However, trade secrets do not protect dish presentations, arrangements and designs (mainly meant to be viewed).

Food patents?

Cooking techniques, recipes, and ornamental food creations are protected under utility patents as long as they are novel and non-obvious. Fulfilling these criteria can be quite a hurdle in the culinary industry because of the prevalence of borrowing from and building on prior works (prior art in the patent world). A famous example is Smuckers' crustless and crimped peanut butter and jelly sandwiches ("Uncrustables®"). An application to patent them was deemed invalid because it did not fulfill the criteria of non-obviousness.

Regardless, food patents have been filed successfully in the past. Examples of these include a utility patent for the process of making microwavable sponge cake and design patents for Breyer's Viennetta ice cream cake and Cold Stone's signature Strawberry Passion ice cream cake. Perhaps it can be deduced that unique pastry designs like Freeman's Mondrian cake could also be protected by patent law, thereby restraining the design's use by other people.

How are foods protected by geographical indications (GI)?

A GI is a sign used on goods of a certain geographical origin and has a reputation or qualities because of their origin. GIs are usually used for agricultural products, wines, spirits, industrial goods, handicrafts and foodstuff. Rights conferred by a GI allow those who have the authority to use the indication to restrain unauthorized third party use if the third-party’s good does not adhere to the applicable standards. An instance of GI protection of foodstuff is Rajasthan’s famous Bikaneri Bhujia. The secret ingredient, as makers of the Bhujia allege, is a fistful of clean desert sand mixed into the dough.

References:

1. https://www.trademarkandcopyrightlawblog.com/2016/06/eat-your-art-out-intellectual-property-protection-for-food/

2. FOOD FOR THOUGHT: INTELLECTUAL PROPERTY PROTECTION FOR RECIPES AND FOOD DESIGNS

3. An Intellectual Property Food Fight: Why Copyright Law Should Embrace Culinary Innovation

4. https://www.finedininglovers.com/article/copyright-trademark-patent-how-protect-recipe

5. https://www.wipo.int/geo_indications/en/#:~:text=What%20is%20a%20geographical%20indication,originating%20in%20a%20given%20place.

6. https://search.ipindia.gov.in/GIRPublic/Application/Details/142

7. https://www.thehindu.com/features/metroplus/Food/in-search-of-bikaneri-bhujia/article3945487.ece