Legal measures to protect the recipe for a food product – article by Jakub Słupski for AgroIndustry.pl
With the advancing commercialization of the food and culinary industries, the value of unique is growing. This means an increased need for legal protection of those recipes, which are the key to the taste and appearance of products, and thus have a decisive impact on their market value.
Recipes – both recipes and methods of producing food products – are not the easiest products of the human intellect to protect. Copyright law does not fully accomplish this task, nor do other categories of intellectual property rights.
So what solution propose to the authors of new, interesting food products? Trade secret protection? Patent protection? Or maybe a combination of several methods? Let’s try to take a closer look at this issue and find a solution.
Often, the first thing that comes to our mind when we think about protecting a product of our imagination is copyright – we feel we are the authors of something original and new, and our creativity is reflected in innovative products. Meanwhile, effective copyright protection of a recipe is very difficult, if possible at all.
Copyright law protects products with creative features, regardless of their form, so theoretically it would also be possible to protect a dish or a food product – however, it would be to protect the physical form of such a product, on a similar basis, for example, to the protection of a sculpture. It will not cover the method of obtaining the final effect with parameters of interest to us, such as taste, smell, specific consistency.
So if what we really want to protect is a procedure leading to a specific food product (i.e. a recipe or recipe), maybe it should simply be written down and protected as a kind of literary work? Unfortunately, this solution will not meet our expectations either: first, most of the provisions should be considered highly technical, and therefore devoid of creative features, and besides, even if the recipe is written ingeniously, e.g. in a poem, only the literary layer, understood as creative use of language. However, the protection will not extend to dry data provided in such a description, because the law protects the so-called a creative element that is difficult to find in the description of the ingredients and the way they are combined, which are, as mentioned, of a rather technical nature. Therefore, such a recipe will be possible to reconstruct and repeat without infringing the copyright.
Author: Jakub Słupski