Benjamin Appelbaum, Attorney at Law

Protecting recipes not easy due to internet

Many New Jersey chefs dream of creating a signature recipe that's worth millions. For example, Sir Kensington's raked in $140 million when it sold its ketchup recipe to Unilver in 2017. However, in the age of the internet, it can be difficult to keep recipes from being posted online. Further, most recipes aren't protected by copyrights or patents.

According to copyright law, utilitarian facts cannot be copyrighted. This includes most recipes, which are seen as a mere list of instructions. In order for a recipe to be copyrighted, it must possess unique features that separate it from ordinary recipes of its kind. The same is true of recipe patents. In order to qualify for a patent, a recipe generally needs to have an ingredient never used before or require a revolutionary preparation technique.

Trademarks are more common in the world of food creation. However, they protect a brand, not a recipe. For example, the creator of the Cronut, a donut with croissant-like layers, does not have a copyright or patent for the product. However, the creator did trademark the name and takes legal action against businesses that sell Cronut knockoffs. Likewise, Pepperidge Farm sued Trader Joe's for trademark infringement when the grocery store chain began selling its own version of Milano cookies. Magnolia Bakery successfully trademarked the swirl on top of its cupcakes.

Chefs, restaurants and businesses who want to protect a food creation may wish to contact an attorney familiar with trademark law. The attorney may assess the situation and outline all legal protections available. If a recipe or food product is being copied by another individual or business, an attorney might work to resolve the infringement.

Source: Bloomberg, "With Recipes, the Key to Making Millions Is Not About the Food," Kate Krader, May 22, 2018

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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