Any industry requires innovation to survive and to remain productive in the market, and the food industry is no exception to this. In the modern day, not only food but the science and technology behind it also matters. From the old-age techniques of brewing and baking to the more recent biodegradable packaging techniques, the food industry is growing continually to keep up with consumer expectation for nutritious and safer food. If 'cooking is an art', then to protect it one needs IPR protection. In the food industry, IPR extends from contents and recipes to advertising and branding of the product. IPRs applicable to the food industry are patents, trademarks, copyrights, trade secrets, and design rights.
Types of the patents which are relevant in the food industry are utility patents. They can be obtained for a food recipe, food composition, or cooking techniques. To get a utility patent, the following criteria must be satisfied:
- It should be novel/original creation (has not been there in previous patents)
- It should be non-obvious creation which means that it has a technical step and without using it, someone skilled also cannot make it by merely using the ingredients
- It should have utility value i.e. it must be useful or have application in industry
These kinds of patents are a bit tricky to obtain because of the above-mentioned criteria. The duration of a utility patent is 20 years.
Legally registered word, symbol, logo, or their combination which helps in identifying and differentiating products/goods and services of one company or party from another's goods/services is known as a trademark. Trademark includes not just the name, packaging, symbol but also the history and reputation of the brand or the product, thus implying quality. Trademark plays an important role in consumer's choice and purchase decisions by acting as a binding factor. For example, if one wants to buy milk products in India, Amul can be considered as a trusted brand.
For trademark registration, you need to find a logo, word (s), or symbol which should be unique (generic and common should not be considered) and should not have been filed by anyone else. Trademark search (online and offline) should be done for this purpose. A trademark attorney should be hired for furthering of the registration process.
Copyright is exclusive protection granted to creators for their work. In food industry, copyrights are difficult to obtain as it is difficult to prove who is the first and original creator, therefore recipes do not have copyright protection. But cookbooks and digital content (blogs, website, design) can have copyright protection.
A trade secret in the food industry is knowledge (formula, recipe, practice, etc.) which is usually unknown to the public at large and which bestows an economic advantage to its holder. Trade secrets do not expire but they can be lost, if discovered or released/revealed. Patents offer more protection than trade secrets; however, there are examples where without patent, companies have been able to protect their formula/recipe (eg Hamdard Roohafza).
Design rights apply to the exterior appearance (shape, pattern, configuration, etc.) of a product or its parts granting the holder the right to make, sell, and use it. To obtain design rights, below conditions must be satisfied:
The design should be fresh, new/original;
The design should be applicable to an article;
The design should be non-obvious;
There should be no earlier disclosure of the design;
Design rights last for 10 years and can be renewed for 5 years. In the food industry, Oreo cookies are one of the best examples of design rights.
India has a huge diversity in food, its preparation, techniques ranging from North to South and East to West, and yet we are not much aware of how to protect our heritage. With the entry of multinational food eateries in India, the danger of domination exists. To avoid this to happen, we need more understanding regarding IPR in the food industry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.