THINKING OF PROTECTING YOUR RECIPE WITH IP?
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| Lasagna for the win |
If you are a foodie like me or you just enjoy cooking, you might have rustled up some wonderful things in your kitchen. This might have had you thinking, “Hmm maybe I could protect this recipe or process”. Thankfully, you are not alone and we at The IP Hut are here to share what we know about IP in the kitchen. In an earlier post, we discussed briefly the types of Intellectual Property Rights available and they included copyright (and moral rights), trademarks, patents, trade secret, design rights, geographical indications, traditional knowledge etc. However, since we are discussing recipes, the IP rights that would be relevant to our discussion include Copyright, Trade secret, Patent, and Trademarks.
COPYRIGHT
A recipe is an idea that can be protected by copyright if it has been expressed i.e. it has been written down or photographed or documented in any form. Copyright cannot protect a mere idea. Thinking about creating a recipe or creating a recipe in your head would not afford you copyright protection (so stop daydreaming and start writing your recipes down). The Nigerian Copyright Act affords protection to original literary or artistic works and Section 1 (1) lists out works that can be protected by copyright. One problem with this protection is that the recipe would be available to the public and unless you are writing a cookbook, blog, or do not mind others replicating your recipes, using copyright to protect your recipe would not be favorable.
TRADE SECRET
Although it sounds super serious (like something out of a Secret Service or CIA spy movie i.e. the Jason Bourne movies) trade secret is simply protection for information, which needs to be kept from the public for economic reasons. The use of trade secrets is how companies like coca cola, Listerine, Krispy Kreme, KFC, and our very own Dooney’s Kitchen yajichurri sauce. They are usually worth a lot of money due to their secret nature and they are kept secret by the use of non-disclosure or confidentiality agreements. Jim Joseph, the author of “the experience effect” suggests that the secret nature of a recipe may help create chatter around a brand's product in its infancy, and encourage people to try the product. In this way, the trade secret helps to boost the success of the brand." Therefore, if you know how to keep a secret then trade secret is for you.
PATENTS
Then again, what if you have invented something in the kitchen or devised a completely new process to cooking a particular dish? This is where patents are useful. Patents are used to protect inventions and while no one would call a recipe an invention, a new process of making a common dish could be patented. For example, although the recipe for making chocolate cannot be patented, Cadbury has a patent for chocolate that does not melt. This could mean that putting a new twist on an original recipe and could lead to the creation of a food patent. The twist, however, has to be inventive and unconventional to be afforded protection (think akara pancakes, yam pancakes, and pumpkin seed egusi soup from Dooney’s Kitchen; and Garri and kuli-kuli cookies from 1Q food platter).
TRADEMARKS
Trademark protection is given to a sign or symbol capable of indicating the origin of a good or service. Although a recipe on its own cannot be given trademark protection, the name given to the dish can be trademarked. An example is a Nigerian starter dish called “gizdodo”, which is a combination of fried plantains and gizzard in a delicious sauce (if you want to be hungry head over to Dooney’s Kitchen and salivate over her pictures of “gizdodo”). Most people have probably made this dish at home; however, the person who came up with the name “gizdodo” could have had it trademarked. Another example is “Ata Lilo”, which is the name Dooney’s Kitchen created for pepper mix, the holy grail of Nigerian cooking (think jollof rice, stew, and efo riro) and “yoodles” (which she created for spiralized yam).
If you have been looking for information on how to protect your culinary masterpiece, I hope this post helps you.
Further Reading
Melanie Radzicki McManus "10 Trade Secrets We Wish We Knew" 15 November 2011.HowStuffWorks.com.<http://money.howstuffworks.com/10-tradesecrets.htm>
Nikita Hemmige “Can Food Recipes Be Protected Under Intellectual Property” 12 February 2015. <http://www.selvamandselvam.in/blog/can-food-recipes-be-protected-under-intellectual-property/>
“Intellectual Property Law in the Food Sector” 7 June 2013. <http://www.eversheds-sutherland.com/global/en/what/publications/shownews.page?News=en/ireland/ip-law-in-the-food-sector-june-2013>
“Legal protection for recipes–bad news for British bakers” 13 October 2015. <http://blogs.lexisnexis.co.uk/wipit/legal-protection-for-recipes-bad-news-for-british-bakers/>
Jani Ihalainen, “Can You Own a Recipe? When Food Meets Intellectual Property Law” 19 September 2014. <http://www.ipiustitia.com/2014/09/can-you-own-recipe-when-food-meets.html>
Nigerian Trademark Act <http://www.nigeria-law.org/Trade%20Marks%20Act.htm>
Nigerian Patent and Designs Act
<http://www.nigeria-law.org/Patents%20and%20Designs%20Act.htm>
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