09 Feb INTELLECTUAL PROPERTY IN THE CULINARY INDUSTRY: AN INDO-AMERICAN PERSPECTIVE
[By Netra Vasudevan. The author is a student of Christ (Deemed to be University), Bangalore]
As with hundreds of industries, the food industry is yet another lucrative sector that drives hordes of people towards it in a quest to establish themselves among a very vast and enthusiastic customer base. It is a very significant sector economically, owing to the indispensable nature of health and nutrition, and a large number of food enthusiasts globally. In this ocean of stiff market competition, innovation is key as businessmen, restaurant owners and chefs scramble towards the goal of setting themselves apart from the crowd and subsequently turning into a household name. For this purpose, individuals often seek intellectual property rights to protect the fruits of their labour, be it a new recipe, or a scientific innovation that could be utilized in the food industry. These rights are mostly sought with the primary objective of excluding others from reaping the benefits of their intellectual creations and exclusively capitalize on the results reaped from these innovations.
But just like most other laws in place throughout the world, the regulations governing intellectual property rights are not black and white, and therefore, confusion arises when it comes to the applicability of these laws in disputes related to food. Hence, it is pertinent to briefly analyse the implications of patents, copyrights, and trade secrets, and see what branches of intellectual property law offer the most reasonable solutions to innovators seeking to protect their work. For this purpose, it is first important to try and understand the underlying conflict that comes with protecting innovations like recipes. Should cooking be considered as nothing more than an activity necessary for human sustenance and therefore not eligible to obtain protection, or should it be considered as an artistic expression that deserves to be protected?
Copyright law functions with the basic objective of preserving the creations of the human intellect. By allowing a creator to capitalize exclusively on the product of his creation and by preventing the public from accessing or reproducing it in any unauthorized way, the government tries to promote technical and scientific innovations, by striking the right balance between public interest and the rights of copyright holders.
In the United States, issues relating to copyrighting of recipes were rarely dealt with by the courts until 1963, when Melville Nimmer tried to conclusively address the issue in his book, titled Treatise on Copyright Law. He believed that recipes should not be copyrighted, as they lacked the critical elements required to pass the test of originality, even though the functional ingredients may have been combined uniquely to create an exclusive dish. Nimmer relied on the idea that the dish could have been made by anyone, to conclude that copyright protection ought to be denied to the claimant. Since then, most courts have upheld this view, as seen in the case ofPublications International Ltd v Meredith Corp, where it was held that the cookbook in question could not be copyrighted as it did not fulfil the modicum of creativity doctrine, which is one of the essential requirements to pass the test of originality.
In India, however, courts have not quite addressed the concept of how individual recipes can be protected by copyright. Culinary skills and recipes are considered as a creative expression of art but do not qualify as copyrightable as they are nothing more than a unique take on an already existing idea, and are not original enough to be deemed copyrightable.
A patent relates to inventions, and is an exclusive right that is granted to an inventor to develop his inventions and exclude others from commercially utilizing them to gain an undue profit at his expense. When it comes to the culinary industry, utility patents are the way to go, for someone seeking to protect his creation. However, statutes that accord patent protection to inventors such as the Patents Act, 1970 in India and the US Parents Act have also laid down a set of requirements that must be satisfied for a patent to be granted. These criteria are namely- the fact that the creation must have been novel or original, the rule that it must have been a non-obvious creation that involved a technical step that would usually not cross the minds of equally skilled people working in the same field, and that it must be of some utility or value in the industry.
In the United States, patents are rarely granted to recipes simply because they are often regarded as not satisfying the essential prerequisites of non-obviousness and novelty. But this does not mean that in no situation have patents for recipes ever been granted by the US Patent Office. Some examples of culinary creations that have gone on to receive patent protection include sugarless baked goods and microwavable sponge cake
In India however, patents have often been granted for food compositions, as the Indian Patent Act 1970 has recognized the patentability of food, medicine and chemical alterations. However, the patentability of recipes in particular remains a hotly debated arena, as they often fall short of the requirements of novelty, non-obviousness and utility that needs to be absolutely satisfied to successfully claim a patent.
Trade secrets are the confidential information of any business or enterprise. It refers to any information that can be used by the business in its operation, and provides it with any substantial or potential economic advantage over its competitors. It is for this reason that an owner of a trade secret would be motivated to take every available precaution to protect this secret.
Action under trade secret misappropriation arises once an individual proves that the content in question is a trade secret and that it had been unlawfully infringed upon, in the process of which a loss has been suffered. When it comes to the culinary industry, recipes do qualify for trade secret protection and it is essential for restaurateurs, chefs and businessmen to take every precaution there is to ensure that such important information is kept confidential and is not leaked. Employees of establishments that deal with such delicate proprietary information are made to sign non-disclosure agreements that prevent them from unlawfully leaking or duplicating this information not only during the course of their employment, but also after it. Some world-famous recipes that have been successfully kept secret for decades include Coca-Cola and Kentucky Fried Chicken.
From the above, it can be seen that the culinary industry is a very difficult zone to navigate through in terms of intellectual property protection. Patent law is often regarded as the better option compared to trade secrets as they guarantee a greater degree of protection. The biggest issue when it comes to trade secrets is that action can only be sought once information has been misappropriated, and therefore loss is quite inevitable as the trade secret shall no longer hold any value once it is released, and often no amount of monetary compensation could offset this tragedy. However, it must be noted that the costs of obtaining patent enforcements are quite high, and that more often than not, trade secrecy ends up being a lot more effective as unlike patents, which require a rigid set of prerequisites to be satisfied, chefs only need to prove that they had exercised due diligence and had taken all the necessary steps to keep their recipes confidential. In conclusion, it can be said that there remains a lot to be done in the culinary industry to ensure that a greater level of protection can be awarded to those who wish to protect the products of their hard work from being infringed, whilst ensuring that an undue advantage that allows such people to wrongfully monopolize on their inventions is not granted.