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Is a Recipe Intellectual Property?

Written by Zana Tomich on July 6, 2016 Category: Food Law, Food Truck, Restaurants
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Imagine this: a restaurant hires a celebrity chef to give its business a boost with a headliner to draw new customers to the establishment. The celebrity chef creates new dishes while employed at the restaurant, and naturally, a following ensues that increases business. A few years later, the chef leaves for another opportunity. Can the restaurant’s successor chef still use the recipes the celebrity created while employed at the restaurant? In the alternative, what happens when a restaurant hires a green culinary grad, trains her, molds and grooms her, gives her access to the all the tried and true recipes.   Years later, she is hired away to a competitor – can she take those recipes with her and use them with a competitor?

If you look at each of these situations after the fact, the answer is that not much that can be done to stop continued use of the recipes. Unless the restaurant or chef took precautions prior to the engagement, the recipes are essentially a free for all. The law provides some options; yet, even those precautions are not exactly solid. Here are a few:

  1. Copyright Law. Copyright law is pretty clear on whether or not a recipe can be protected by copyright. The U.S. Copyright law specifically states that copyright law does not protect recipes that are a mere listing of ingredients that go into a dish. However, if the recipe is expressed in a writing, explanation, illustration, as in a cookbook, it may be protected if it can be considered a substantial literary expression. This is a double-edged sword: in order to copyright the recipe, one has to deposit the work with the Copyright office, making it public, and therefore revealing the ingredients. Even then, a competitor can change the recipe by one ingredient that would have the effective of changing the recipe and circumvent the Copyright and continue to use it.
  1. Trade Secret. Another option is to keep the recipe, or formula, a “secret” or proprietary, like the classic example of the Coca-Cola formula. In order to meet the elements of a trade secret, the recipe cannot be generally known to the public, provide some economic benefit over competitors, and reasonable efforts must have been made to keep it secret. While this may work when you are referring to a sauce or drink, it can be problematic in a kitchen employing a dozen or more people who need to know the recipe to make a dish every night and/or work in close proximity of one another.
  1. Trademark the Name of the Dish. While a obtaining trademark registration wouldn’t protect the recipe itself, it could protect the name of a popular dish, especially if that particular dish creates an identity for the restaurant. An example of this is Big Mac, which is a registered a trademark of McDonalds, a food item of which we all know the ingredients. While trademarking the name of every item on the menu may not be feasible in day-to-day operations of running a kitchen, it could be implemented in the case of a very well known dish.
  1. Contract the Confidentiality. Another option may be to contract for confidentiality, nondisclosure, or even a noncompetition agreement. While this can be a valid way to protect the work, or prevent someone from using the recipes, enforcing the contract in the event of breach may prove to be more difficult and an expensive aspect of this alternative.   The down side is that a restaurant may not want to restrict the competition for fear of turning off hot chefs from the market and shrinking the employment pool.

Overall, there are options to protect the recipes. The real issue is evaluating if the solutions are worthwhile, and whether they accomplish the goal of protecting your work. If you would like more information or how to implement one of the above, please contact us to strategize on a solution.

 

 

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The business and employment attorneys of Dalton & Tomich take your business just as seriously as you do. Attorneys Zana Tomich and Noel Sterett are trusted by closely held family businesses and others across Michigan and Northern Illinois as invaluable partners and counselors. We guarantee all your calls and emails will be returned within one business day so you can focus on what you do best: running your business.