How to protect recipes? Copyright or Know-how?

It is rare, but not impossible for a recipe to be granted protection. A recipe is a combination of a list of ingredients and practical instructions and the result of a recipe can be the creation of an original dish. Authors of such recipes may feel frustrated when they see their recipes copied without their agreement nor any mention of them. However, the legal remedies against the copying of a recipe are limited.

Under French law, for a culinary creation to be protected by the French Intellectual Property Code, it needs to meet three requirements under copyright law. According to the terminology established by case law, the culinary creation needs to be an “intellectual work” (“oeuvre de l’esprit”), presented in some material form, and bear “the imprint of the personality of its author” (originality criterion).

Modern doctrine does not allow recipes to be protected, whether under the anglo-saxon copyright or the “droit d’auteur” of civil law jurisdictions. However, case law has not always been consistent in this area.

In a decision of the Paris Court of first instance (“TGI de Paris”) in 1974 [1], it was stated that “while recipes may be protected in their literary expression, they are not intellectual creations as such; indeed, they can be defined as a succession of instructions, a method; they belong to the category of know-how, which cannot be protected.” Case law does not completely exclude the protection of a recipe by copyright law. Indeed, case law considers that recipes are, in theory, know-how. As such, a recipe cannot be eligible for copyright protection in the same way as an idea or an instruction manual: it is not presented in a material form and the “originality criterion” is not met. However, a recipe which clearly stands out from others might still be eligible for copyright protection. Indeed, “add-ons” may allow a recipe to obtain legal protection: an original illustration, a creative narrative, a reference to a specific piece of music, a suggestion as to how the dish could be presented, a recommendation for wine pairing, a story of how the recipe was created or even an evocation of memories associated with the recipe. All the abovementioned elements may be protected by copyright or “droit d’auteur,” even if the recipe may not be entitled to such protection.

Thus, each copy of a recipe which is ‘upgraded’ using these methods must display its copyright protection status by displaying the symbol © along with relevant information (publication date) (the author’s name), despite these not being prerequisites for such copyright protection. Copyright protection will not prohibit anyone however from actually following the recipe, nor does it prohibit photography of the various stages of preparation or the final dish or even describing the recipe through different terms and expressions.

Moreover, while it is possible to name to a culinary creation and to protect it by filing a trademark application, this does not allow for the protection of the culinary creation or the recipe itself. It is important to note that the scope of copyright protection granted to culinary creations is limited: no intellectual property right permits a clear and unequivocal protection of the culinary creation, regardless of the form in which it is presented. If indeed intellectual property rights are ineffective, are there any other legal means? If we consider a recipe as know-how, it could be protected by trade secrets: in fact, major trademarks like Coca-Cola and

Kinder have used this practice to keep their recipe secret. A secret recipe is thus protected from theft and copying. This would however mean limiting access to the recipe to certain individuals who wouldl be bound by a confidentiality obligation or who have signed a non-disclosure agreement. One should carefully specify on each copy of a recipe that it is a “Trade Secret. Not for publication. All rights reserved.” Nevertheless, the protection of the recipe would be based on confidentiality agreements, the effectiveness of which relies only on the good faith of the signatories. For Jerome Banctel, consulting chef of Mama Shelter Group, the easiest way to protect one’s culinary creation today is indeed to get it published: “If we have a great idea, we hasten to broadcast it in order to prevent people from copying it. We immortalise the idea by disclosing information to the maximum.[2],”

Protection by copyright or as know-how is granted on a case-by-case basis. Remember that a touch of originality will help you obtain protection more easily!

[1] TGI Paris, July 10, 1974

[2] http://www.slate.fr/story/64233/recette-cuisine-propriete-intellectuelle