If you’re involved in the food service industry, how can you protect your business from unauthorized copying of your recipes and food? Are those things even protectable?
As we discussed in this recent blog, one way to protect confidential information is to treat it as a trade secret.
As we explained before, trade secret law protects information that:
The formula for Coca-Cola, although it’s evolved over the years, has been protected as a trade secret since the 1880s.
Other food-related trade secrets include the recipes for:
Companies need to vigorously enforce their rights in order to protect their trade secrets. Treating a secret casually can lead to the loss of legal protection for it.
In 2010, as the New York Times reported, one of only seven people who knew how the Thomas’ English Muffins got their “nooks and crannies” left Bimbo Bakeries USA (which owns the Thomas’ brand) and planned to work with Hostess brands (which makes Twinkies, among many other food products).
Bimbo obtained a court order to stop the former Bimbo executive from moving to its rival. According to Bimbo’s lawyers, the executive (who had signed an NDA) copied confidential company information onto a flash drive before departing for Hostess.
Bimbo clearly took extraordinary efforts to protect its secret. As the Times noted,
According to Bimbo’s filings, the secret of the nooks and crannies was split into several pieces to make it more secure, and to protect the approximately $500 million in yearly muffin sales. They included the basic recipe, the moisture level of the muffin mixture, the equipment used and the way the product was baked. While many Bimbo employees may have known one or more pieces of the puzzle, only seven knew every step.
A baking industry expert had earlier spent more than 10 years trying to replicate the Thomas’ nooks and crannies for hostess, without success.
Trade secret law doesn’t prevent anyone from legally “reverse engineering” a recipe that’s protected as a trade secret. However, using improper means (such as copying confidential company information onto a flash drive in violation of an NDA) violates trade secret law.
Food that’s protected by a patent can’t be replicated without a license from the patent owner. Someone who reverse engineered a patented food could still be sued for patent infringement.
Some examples of patented food items are:
As the US Patent Office notes, “can a recipe be patented?” is a common question. As the USPTO explains, “the short answer is yes, recipes are eligible for patent protection because they potentially contain patentable subject matter.”
However, to be patentable an invention must be “novel” and nonobvious.” That’s a high bar to reach for recipes:
Consider that people have been mixing together ingredients to produce different food products since the dawn of humanity-in fact, some of the earliest known examples of written language are food recipes. These days, most "new" recipes are merely combinations of known ingredients in varying amounts, separate discoveries of preexisting recipes, or variations on known recipes. Even if a previous version of a recipe cannot be found, a "new" recipe could still be considered obvious.
Copyright law might protect a specific writeup of a recipe as a “literary work,” and copyright law can certainly protect collections of recipes in the form of a cookbook, but copyright law doesn’t prevent anyone from describing someone else’s cooking process in materially different words, let alone from cooking the dish that results from the recipe.
The most common way of protecting food-related IP is via trademark law, which protects the names and logos under which food items are sold.
As in any other industry, protecting intellectual property in the food service industry requires a coordinated strategy.