For a passionate chef/restauranteur, an original recipe is unique, personal and important for their business, just as a writer treats his works. Hence, it's obvious that they would want to secure legal protection for the same. However, can a recipe be treated as a literary work? Do recipes qualify as intellectual property? Can recipes be trademarked? No, trademark protection does not extend to recipes, however, the distinctive name of a dish can be protected.
Trademark protection acts as a branding tool for any business, as it would distinguish your brand (or in this certain recipe), from that of others. Trademark registration will give you exclusive use of the particular name and will stop others from selling dishes under the same name. Here are a few reasons you can trademark the name of your recipe:
For instance, the popular fast food chain Burger King ® has trademarked the names of several of their dishes. Veg WHOPPER®, BK® Veggie, BIG KING® are all trademarked names of their dishes right off the menu.
In order to obtain a trademark registration for the name of your dish, you need to come up with a distinctive name that would help people associate the dish with your brand. Only such names will be treated as a mark for the purpose of registering the trademark. Common names do not get trademark protection.
You can file the trademark application through a simple online process. The application must be filed with the necessary supporting documents, as prescribed by the Trademarks Act, 1999.
Prior to filing a trademark applicationfor your recipe, it is recommended that you conduct a preliminary trademark search for the name you want to register.
Copyright law provides protection to original literary and artistic works. This means that, if your recipes are expressed in an innovative manner, it can be protected under copyright law. Here are a few situations in which your recipe can be protected:
The copyright is created automatically when the content is created. However, through a copyright protection, you will be able to take legal action against infringers. You should be aware that copyright just protects the expression and not the idea. So, in the above cases, the entire book and video is a copyright.
For instance, if your recipe book has a recipe for Chicken Tikka, the idea behind the recipe and the process cannot be protected by copyright. So, you cannot stop other people from recreating a similar dish. However, the copyright will protect the way you have represented the Chicken Tikka recipe. So, someone will not be able to copy the recipe and sell it under their own name.
Patent law can be used to preserve and protect the technique, as well as the process used to create a particular dish. In case you have come with an inventive way to prepare the dish, the process can be patented. However, to be patented the process should be original and it should be non-obvious - be something known to an expert in the same field.
This is why patenting a recipe is difficult, because establishing the non-obvious character is tricky. Most recipes are based on a combination of ingredients, and this can be considered obvious or something an expert in the field would know. So, to get a recipe patent, the chef/restauranteur must do something completely extraordinary using the ingredients.
American company Smuckers have a patent for their peanut butter and jelly sandwiches. How did they manage that especially because the combination of peanut butter and jelly in a sandwich is fairly obvious? Their sandwiches stood out because they used a technique to remove the crust of the sandwich, use a semi-solid combination of peanut butter and jelly to stuff the sandwich, and crim the edges of the bread to seal the sandwich. Their novel process and use of ingredients to create a dish allowed them to secure a patent.
This is probably the most common way that recipes are protected. Most leading restaurants use a unique blend of spices or ingredients that distinguishes their dishes from similar dishes of competing restaurants. For instance, the fried chicken recipe from KFC is a well-guarded trade secret. Trade secrets allow restaurants and chefs to protect their craft, and most street food stalls work in this manner. Try asking what your local Chole Bhature Wala uses to make his chole so delicious, he's never going to tell you the whole story.