Can you Protect your Family Recipe under the Law of Intellectual Property?
Traditionally, recipes are either passed down to the next generation or shared between households, chefs and cooks. But what if you are engaged in the business of selling food using your own version of a special recipe passed down to you?
Obtaining a patent for a recipe is possible. However, your recipe has to pass the strictest requirements to meet the requirements for patent protection. A patent is a right that is legally enforceable and is available for a device, substance, method or process that is novel, inventive and useful. The Patents Act 1990 (Cth) requires that applicants satisfy the inventiveness test, which means that the recipe should have an inventive step that makes it unique. The Patents Act 1990 (Cth) also requires that the product or process is new and not obvious over what is already publicly known.
Unfortunately, most recipes are mere variations of already existing products or recipes and therefore do not qualify as new, inventive and non-obvious.
There are other options to consider when protecting your recipes. You can protect your recipe through a trade secret as have Coca Cola, Kentucky Fried Chicken, Twinkies, Krispy Kreme Doughnuts, Listerine and others. This form of proprietary know-how can be protected through putting in place agreements and requiring that everyone who has access to or who is involved in the creation of your recipe signs a confidentiality or non-disclosure agreement.
However, this will not protect your recipe if someone independently works out the recipe or formula through “reverse engineering”, for example, by “tweaking” the ingredients to match or duplicate the food. There are even apps and artificial intelligence systems these days that claim to analyse photos of food and tell you what the food is and how to cook it.
Trade secrets cannot protect you from independent development. If a competitor is able to formulate a recipe that just happens to be the same as your “mix of herbs and spices”, you cannot stop them from using the recipe or selling the food.
Protect your Family Recipe in some way can also be protected through copyright. The Copyright Act 1968 (Cth) protects the original expression of ideas, but not the idea itself. Once an idea or creative concept is documented, it is automatically protected by copyright in Australia.
Copyright can protect the recipe used in a book in the way it is written, that is, the expression of the work but not the way it is made. Copyright will not extend to recipes if they are for a food that is well known (e.g. pasta or banana muffins) because the recipes are not “original”.
Consequently, if you publish your own recipe book you also cannot prevent others from making the dish or people from writing their own descriptions of how to make a well-known recipe because a requirement for copyright protection is that a work must be original. Nor can you prevent another person publishing his or her own version of your recipe.
You can also apply to register a trade mark in Sydney for your recipe to obtain branding rights.
Trade mark protection plays an essential role in the branding strategy of a business so that your customers can identify your food products by its exclusive trade mark, or logo or even a catchy slogan!
- Obtaining a patent for your recipe is possible but difficult.
- One option to protect your recipe is through a trade secret where your employees and contractors sign non-compete clauses and confidentiality agreements.
- Trade secrets cannot protect you from others who may happen to independently make the same recipe.
- Copyright protects your work only in the way it is written in a recipe book, that is, the written expression but does not protect information abut the ingredients or cooking methods.
- You can file a trade mark to protection a label or brand name.
Jaclyn-Mae Floro, BCompSc
Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about intellectual property lawyers sydney or get in touch at firstname.lastname@example.org.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.