Spicing up protection: who owns your recipe?

An interesting dispute has exploded on social media recently between two celebrity cooks: Nagi Maehashi of popular cooking website RecipeTin Eats and bakery owner Brooke Bellamy. Nagi has accused Brooke of copying two of her recipes, which were published by Brooke in her best-selling Bake with Brooki cookbook, released last year. A social media post by Nagi shows that the ingredient lists for her recipes are almost identical to those published by Brooke.

At first glance, this might seem like a clear-cut case of copyright infringement, but once you stir the pot, you'll find the recipe isn't so simple.

In the culinary world, recipes are often considered the heart and soul of a chef's creativity. However, when it comes to intellectual property (IP) protection, recipes occupy a unique and often challenging space. Unlike inventions or artistic works, recipes are functional instructions designed to achieve a specific result, making their protection under traditional IP laws complex. This article explores the legal issues surrounding the IP protection of recipes, the limitations of existing frameworks, and alternative strategies for safeguarding culinary creations.

Understanding IP and its relevance to recipes

Intellectual property refers to legal protections granted to creations of the mind, such as inventions, artistic works, and trademarks. In the context of cooking, various components of a culinary experience can be considered IP, including:

• The recipe itself: A set of instructions detailing ingredients and preparation methods.

• Presentation and plating: The artistic arrangement and garnishing of food.

• Branding and names: Trademarks, logos, or specific names associated with a dish or restaurant.

• Unique cooking techniques: Proprietary or innovative methods of cooking.

While these elements can fall under different forms of IP protection, the recipe itself poses unique challenges.

Forms of IP protection 

Several forms of IP protection could apply to recipes, but each comes with its own set of limitations:

1. Copyright: Protects original works of authorship, such as books, music, and visual art, provided they are fixed in a tangible form. In the case of recipes, copyright can protect the way a recipe is written or presented, such as in a cookbook. However, it does not extend to the functional aspects of the recipe, such as the combination of ingredients or cooking methods. For example, while the written description of a chocolate cake recipe may be protected, the act of making the cake itself is not. It is also possible for two cooks or authors to write the same recipe independently of each other, in which case both will hold copyright in the recipe.

2. Patents: Grants exclusive rights to an invention that is novel, inventive, and useful. While it is possible to patent a recipe, the criteria are stringent. The recipe must involve a unique process or composition, often requiring a scientific or technical innovation. For instance, a new method of preserving food or a unique chemical composition in a dish might qualify for a patent. However, most recipes, being combinations of known ingredients and techniques, do not meet these criteria.

3. Trade Secrets: Offer protection for confidential business information that provides a competitive edge. Recipes can be protected as trade secrets if they are kept confidential and provide a business advantage. Famous examples include the Coca-Cola formula and KFC's blend of herbs and spices. However, maintaining a recipe as a trade secret requires strict confidentiality measures, such as non-disclosure agreements with employees and suppliers.

4. Trademarks: Protect branding elements, such as logos, names, and slogans, that distinguish a product or service. While trademarks do not protect the recipe itself, they can safeguard the branding associated with a dish or restaurant, enhancing its market identity.

Challenges in protecting recipes

The primary challenge in protecting recipes lies in their functional nature. Recipes are often based on shared culinary knowledge, traditional techniques, and common ingredients, making it difficult to establish originality. Additionally, the widespread sharing of recipes in cookbooks, blogs, and social media further complicates their protection.

Another issue is the enforcement of IP rights. Even when a recipe is protected under copyright or as a trade secret, proving infringement can be challenging. For example, if another cook creates a similar dish using slightly different ingredients or methods, it may not constitute a violation of IP rights.

Alternative strategies for safeguarding recipes

Given the limitations of traditional IP frameworks, chefs and food businesses often adopt alternative strategies to protect their recipes:

1. Branding and marketing: Building a strong brand identity can help distinguish a dish or restaurant in the market. Unique names, logos, and slogans can create a lasting impression and attract loyal customers.

2. Confidentiality agreements: Implementing non-disclosure agreements with employees, suppliers, and business partners can help maintain the confidentiality of recipes.

3. Innovation and creativity: Continuously innovating and creating new dishes can help chefs stay ahead of competitors.

4. Community engagement: Engaging with customers through storytelling, cooking classes, and social media can build a loyal following and enhance the perceived value of a recipe.

Conclusion

The legal issues surrounding the IP protection of recipes highlight the complexities of balancing creativity and functionality in the culinary world. While traditional IP frameworks may offer limited protection, strategies such as branding, confidentiality, and innovation can help chefs and food businesses safeguard their creations. By understanding the nuances of IP law and adopting proactive measures, chefs and food entrepreneurs can navigate the challenges of protecting their recipes while fostering a culture of creativity and innovation.

With this in mind, it will be interesting to see how the Nagi v Brooke dispute is resolved or whether anything comes of it at all. Much will depend on whether Brooke actually copied the Nagi recipes or whether Brooke can show that she created the recipes herself.

If we can assist with any IP issues you have bubbling away, please contact us.

Author: Michael Cossetto