Intellectual Property Protection for Restaurants
Restaurant owners often wonder about whether they can use the intellectual property (IP) system to stop competitors from stealing their recipes. The answer, as with so many things in law, is that it is complicated. American IP is divided into four categories: patents, copyrights, trademarks, and trade secrets. These each protect their own types of “works of the mind.” Patents are aimed at inventions, copyrights at art, trademarks at business logos and names, and trade secrets at confidential information.
Of these four types of IP, the most likely ways that restaurant owners can protect recipe theft are through trademarks or trade secrets. Patents are too focused on inventiveness, so very few recipes qualify for protection, and the copyright office has declared that copyright may protect certain recipes written in cookbooks or published online, but that it does not protect the underlying food.
Trademarks protect logos, business names, product packaging, and other characteristics that allow consumers to identify the source of a product, so it does not intuitively seem like it would be useful for protecting recipes. However, there are a variety of circumstances where it can matter. For instance, if a chef develops and names a new dish, then they may be able to prevent other restaurants from using the same name. A good example of this is Dominique Ansel, who invented the Cronut, and now prevents other bakeries from selling similar pastries under the same name. Importantly, this merely protects the name, not the underlying pastry, but it can still help prevent a business from losing customers.
The other area where trademarks show up in food law is in the area of trade dress. Trade dress is the packaging or shape of a product, and it can be protected under trademark law if consumers associate the look of a product with a certain company. For instance, if a restaurant serves a unique-looking cake, then they may be able to claim trade dress on that cake’s shape. Although, not all courts will extend the trade dress doctrine that far.
The other option for protecting recipes is trade secrets. Trade secret law protects the confidential information of a business regardless of whether that information would otherwise fall into another category of IP protection. This can make it a great way of protecting recipes, and major corporations like Coca Cola have even used this strategy to protect their recipes.
However, it is important for people to understand the limits of trade secret protection. First, the law requires the owner of the information to take reasonable steps to keep the information secret. For the purpose of recipes that can mean something like only disclosing it to the people who need to know for business purposes, and binding them under confidentiality agreements.
The other important limit of trade secret law is that it protects against “misappropriation” rather than use. Misappropriation is a person’s improperly taking the recipe, such as a chef leaving to go start their own restaurant. If some third party happens to come up with a recipe that is identical in every way, but they did so on their own, then trade secret law cannot help.
The restaurant business has many risks, but IP law can help mitigate some of them. If you believe that someone is violating your company’s IP rights, contact a Florida intellectual property attorney at Pike & Lustig, LLP to learn more about your options.