In the world of gastronomy, where flavors dance and aromas captivate, the artistry of crafting a recipe is a symphony of creativity. However, beneath the surface of culinary innovation lies a legal landscape that seeks to balance the allure of taste with the principles of intellectual property (IP) protection. The quest to safeguard the essence of culinary creations has led to an evolving discourse surrounding the intricate interplay between recipes and IP rights.
In the realm of intellectual property, recipes occupy a unique position, straddling the boundaries between functional information and creative expression. While basic recipes or lists of ingredients may be considered more akin to general information, unique combinations, techniques, and presentations could potentially warrant some form of protection.
Chloe Coscarelli, the first-ever vegan chef to win the Food Network's "Cupcake Wars" has been a part of a long-standing legal battle against ESquared Hospitality, her former business partner. 1 One of the main issues of difference between the parties was the alleged copyright infringement of Chloe Coscarelli's recipes from her cookbooks by ESquared Hospitality. The chef contended that her former business partner had infringed her copyright over the recipes contained in her cookbooks by publishing the same recipes online.
This issue of copyright infringement was settled by a US District Court in the case of Chloe Coscarelli v. ESquared Hospitality 2. The Court applied the facts/expression dichotomy to the facts of the case and held that the lists of required ingredients and the directions for combining them to achieve the final products are not eligible for copyright protection. Accordingly, the Court ruled that there was no case of copyright infringement as alleged by Chef Chloe Coscarelli.
This matter brings forth a series of inquiries concerning the safeguarding of recipes as intellectual property. Can recipes be deemed eligible for intellectual property protection? If the answer is affirmative, then what specific category of intellectual property rights can be attributed to recipes? Moreover, what is the prevailing legal standpoint concerning intellectual property rights related to recipes in the context of India? To address these queries, let's delve into the different avenues of intellectual property protection outlined by Indian law in relation to recipes.
Trademark Protection of Recipes
Under the Trade Marks Act, 1999, the term "mark" is defined to include "a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof." Therefore, under the Trade Marks Act, several aspects of a food item can be trademarked, such as its shape, its trade-dress, and the brand logo using which it is marketed. However, the recipe of such a food item in its written form is not capable of trademark protection as it does not fall under the scope of a "mark" under the Trade Marks Act, 1999.
Copyright Protection of Recipes
Prima Facie, it may seem that recipes are copyrightable as "literary work" under the Copyright Act, 1957. This is where the idea-expression dichotomy becomes relevant. The idea-expression dichotomy essentially means that ideas are not copyrightable, only expression of ideas is copyrightable. For example, if A has written a book on space travel, and B also writes a book on space travel, the mere fact that B has written a book on the same topic as A, is not sufficient to prove copyright infringement because the idea of space travel is not copyright protected.
Even the judiciary has acknowledged the idea-expression dichotomy under copyright law in India. For instance, in the landmark case of R.G. Anand v. Deluxe Films 3, where the plaintiff contended that the defendant has substantially copied the theme of the plaintiff's play and remade it into a film, the Court, inter alia, held that "there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work."
Applying the principle of idea-expression dichotomy to the case of recipes, it is evident that a recipe in its written form is not copyrightable because it is factual in nature and merely states the ingredients and procedure involved in making a dish. Now, there are instances where recipes are included in a cookbook which also contains other expression such as the author's personal experiences and remarks about the taste, consistency, colour of the food, etc. In such cases, the cookbook as a whole is copyrightable as a "literary work", but the recipes contained within the cookbook are not copyrightable because they are just statement of un-original facts, in the absence of the other expressions contained in the cookbook.
Protection of Recipes as Trade Secrets
Some of world's most well kept trade secrets are recipes, case-in-point – Domino's, Coca Cola, KFC, etc. However, protection of trade secrets in India is limited to contractual protections and common law principles, in the absence of a specific legislation for trade secret protection. Therefore, where a recipe is to be protected as a trade secret, air-tight Non-Disclosure Agreements (NDAs) and Confidentiality Agreements must be executed between the author of the recipe and the persons with whom such recipe is shared.
However, trade secret is only commercially valuable as long as it remains a secret, and therefore, it only makes sense for a recipe to be protected as a trade secret if such recipe is to be mass-produced across various jurisdictions. If the author of a recipe seeks to commercially exploit the recipe by publishing the same, it is trivial for the recipe to be protected as a trade secret.
Patent Protection of Recipes
For any invention to be granted a patent, it must fulfill the following patentability criteria:
- It should be novel;
- It should have inventive step or it must be non-obvious;
- It should be capable of Industrial application; and
- It should not attract the provisions of section 3 and 4 of the Patents Act 1970. 4
Let us now analyse a recipe's patentability vis-à-vis the above-mentioned patentability criteria:
Novelty
Most recipes are common and generic. However, there are some recipes which are only known to a select few people in the world. For example, the recipe for preparing traditional sambhar within 5 minutes is novel and patented under the Patents Act. Therefore, any recipe that is new and unknown to the general public will be considered to be novel.
Inventiveness
Usually, a dish can only be made by following a particular set of steps. Therefore, in general, recipes do not contain any inventive steps. However, there are recipes which contain inventive steps. For example, the recipe to prepare cake using phospholipase (an enzyme) is patented under the Patents Act. The inventive step in this case is the use of phospholipase to counteract against the deterioration of a cake. Therefore, a recipe that involves a non-obvious and inventive step to create a dish will be considered to be inventive.
Industrial Application
Under the Patents Act, "industrial application" in relation to an invention, means that the invention is capable of being made or used in an industry. As such, food, in general, is capable of being mass-produced by an industry. Consequently, a recipe to prepare a specific form/kind of food can very-well be used in an industry to produce such food for human or animal consumption.
Outside the Scope of Section 3(e) of the Patents Act
Section 3(e) of the Patents Act provides that "a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance." In essence, a recipe must not provide for a process to create a mere admixture of already-known substances and such mixture must not merely result in the aggregation of the substances mixed free of any synergy. In this regard, the Hon'ble Bombay High Court in the case of Lallubhai Chakubhai Jarivala v. Shamaldas Sankalchand Shah 5 held that "A new combination may be the subject-matter of a patent although every part of the combination per se is old, for here the new part is not the parts themselves, but the assembling and working them together, which ex hypothesi is new. If the result produced by such a combination is either a new article, or a better article, or a cheaper article than before, such combination is an invention within the statute and may well be the subject-matter of a patent."
A recipe is essentially a process to create a substance with an admixture of other substance. Therefore, in order to by-pass the scope of section 3(e), a recipe must provide for either (i) an admixture of completely new substances; or (ii) a new admixture of already-known substances, and such admixture must result in a dish that contains a synergy of all the substances mixed.
Thus, a recipe is indeed patentable if it fulfills the above-discussed patentability criteria.
Conclusion
Talking about law and creativity, protecting recipes as intellectual property is like solving a puzzle. Recipes are a mix of tradition and new ideas, and we wonder if they can be legally owned and guarded.
In India, the ways to protect recipes are like different colors on a canvas: copyright might cover how a recipe is described, trade secrets are for keeping recipes secret, and trademarks connect recipes with where they come from. But patents and recipes don't really fit together, as recipes are usually made up of known ingredients and methods.Two of the most celebrated way as on date to protect recipes are intellectual property protection as a trade secret or a patent. The protection of a recipe as a trade secret is more relevant when the author is desirous of keeping the recipe confidential and aims to use the recipe to produce food at a large scale and gain a competitive advantage. In case a person merely wants to claim ownership over a recipe, it can be protected as a patent.
The law about protecting recipes in India is still changing, and it's like finding the right balance between new ideas and old customs. So, can a recipe really be someone's property, or is it something everyone shares? As we enjoy new tastes and remember old ones, let's keep exploring how laws and creativity come together, making sure our answers match what recipes mean—a blend of time, flavor, and culture that we all enjoy.
Footnotes
2. Chloe Coscarelli v. ESquared Hospitality, 18-CV-5943 (JMF) (S.D.N.Y. Nov. 24, 2021)
3. R.G. Anand v. Deluxe Films (AIR 1978 SC 1613).
4. https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Final_FREQUENTLY_ASKED_QUESTIONS_-PATENT.pdf .
5. Lallubhai Chakubhai Jarivala v. Shamaldas Sankalchand Shah (1934) 36 BOMLR 881.
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