IP Insights

What IP can be found in food and beverages

In the food & beverage business, intellectual property can be found in a number of ways.

First point of call will be the brand name or logo for a particular food or beverage and this is not the descriptive name of what the product is but the name or logo used to define it from any other product in the market so it qualifies as a Trade Mark. A trade mark that is simply descriptive will fall foul of s41 of the Trade Marks Act 1995 (Cth) where the trade mark does not distinguish an applicants goods or services but merely describes them, one example of this would be “The Best Oranges” for oranges.

Trade Marks are also not limited to just the brand name or logo even certain colours and shapes such as the very particular shade of purple that is closely associated with Cadbury chocolates has been registered a trade mark and the whiskey distiller Johnny Walker has a trade mark for their bottle, in addition to their famous slogan “keep on walking”.

Question: I have a recipe for distilling rum? Can it be Considered Intellectual Property?

Beverage companies and food companies are both built on the success of their recipes and production processes.

You may be wondering whether a recipe can be considered intellectual property. The answer is yes. However, while certain recipes can be considered intellectual property, they can still be harder to protect than other more common forms of intellectual property, such as a logo or brand name.

This does not mean that it is impossible to protect your recipes as intellectual property. 

Simply put, there are additional factors that need to be taken into consideration. When protecting these IP assets depending on their form of commercial use, recipes may fall into a number of IP categories such as copyright, trade secrets and patents in the “production process”.

How Do I Protect My Recipe Under IP Law?

Protecting your recipes under Intellectual property law will depend on the recipe itself, your intentions of commercial use and the options you have in front of you. In some cases, it will be possible to register for intellectual property protection and in others, protecting your recipe will involve getting the right legal documents in place.

Protection as a Trade Mark?

Putting it bluntly, a recipe itself is unlikely to be registered as a trade mark Despite the definition of what can constitute a trade mark being broad, recipes generally cannot fall under it.

A trade mark is something that is unique and distinctive to a brand, such as a name, logo, shape, smell, colour or sound which the public can use to identify it from competitors in the market place. An entire recipe is not typically registered as a trade mark.

Protection Under Copyright?

In Australia copyright ownership vest automatically to the creator of an original piece of work, allowing them the ability to use that work as they please as outlined in the Copyright Act 1968 (Cth).

As an overview Copyright provides legal protection for people who express original ideas and information in certain forms. The most common forms are writing, visual images, music and moving images. Copyright also applies to things such as computer programs and source code for software.

For example, if you finish composing an original piece of music or create an original graphic design then copyright is automatically applied to you.

From a commercial perspective if someone uses that music in a video or uses that design on a garment or online without your consent for commercial purposes, then they are committing copyright infringement.

Copyright can apply to a recipe, however, enforcing it strictly can be challenging.  Generally speaking, copyright for a common recipe is likely to not hold up. For example, if you post a recipe that details how to cook sourdough bread the way sourdough bread is usually prepared by everyone, it will be hard to enforce the copyright for it.

On the other hand, if you publish a recipe book with original recipe ideas and methods, then copyright will apply to the book and your recipes in it. If someone plagiarises the recipes and publishes another book containing them, then you will likely have grounds to pursue action based on copyright infringement as a literary work.

However, copyright does not prevent other people from making your recipe, sharing it or creating their own versions of it. If you plan on putting your recipes out to the world, it’s good to be prepared for these scenarios.

A question that’s asked often can I register copyright? The answer is unfortunately no as Australia has no register for copyright as such. The closest we have come to some kind of a copyright register is Viscopy who manage and licence images of artist works for commercial and public purposes, but this is more of an agency than a regsiter.

Protection as a Trade Secret?

Yes, a recipe can be considered a trade secret. However just like copyright there is no formal register of trade secrets in Australia as a protectable form of Intellectual Property. When it comes to trade secrets this is very important for food and beverage makers to consider from the outset and you may ask why? Just think of coca cola and KFC both these companies have a very intense regime to protect the trade secrets of their cola syrup and the seven secret herbs and spices. In fact these companies have only one location that manufactures their base ingredients for the global market place of distributors and franchises they operate.

If you have something like a recipe that you wish to treat as a trade secret, then you should take precautions to ensure it doesn’t fall into the wrong hands.

Protective measure that can be taken are:

• Employees in the manufacturing process signing non disclosure agreements, non compete clauses and confidentiality clauses in employment agreements; and

• Having a manufacturing location limited to a number of trusted team members that partake in the base preparation of particular ingredients and then this base just like coca cola is used in the main manufacturing process, after its been created by the limited team.

Protection as a Patent?

Under the Patents Act 1990 (Cth) once a patent is registered, it gives its creator the legal rights to use the design, process, method, substance or device. A patent, like other forms of intellectual property such as a trade mark seeking protection, needs to be registered with IP Australia.

Getting a patent registered involves time and a comprehensive application process and the advice and assistance of a patent attorney, where the item in question must meet all the requirements to qualify as a patent.

Can a recipe be protected as a patent?

In very rare circumstances can a recipe be patented. In order for a recipe (or anything) to be patented, it must meet the requirements of:

• New - it must be novel

• Useful - it can be made or used in an industry

• Inventive - it's different enough to what already exists

• A suitable subject matter, known as 'manner of manufacture'.

A Patent can cover a broad range of inventions such as:

• Medical technology

• Pharmaceuticals

• Biotech

• Organic chemistry

• Civil engineering

• Appliances

• Mechanical devices.

Recipes are often not considered to be inventive or innovative as they involve putting already existing ingredients together. In any regard, it can also be difficult to prove that a recipe hasn’t been used by anyone else at another time. However, if a particular recipe does in fact lead to the creation of something new, then there is a chance that it can be patented. It must simply satisfy the requirements of a patent.

Key Takeaways

There is big excitement in a new venture in the food and beverage industry, however when it comes to sharing your recipes which are your hard work and creativity it’s important to think about protecting your intellectual property in a competitive industry.

To summarise what we’ve discussed:

• Intellectual property includes your intangible assets, so an original recipe can be considered IP. Whilst it may be a trade secret it will have value in the sale of the business, brand or product to a competitor or third party at a later date.

• It’s difficult to get a recipe registered as patent.

• Copyright protections do apply to recipes, such protection will only apply if the recipe is used for commercial literary publishing purposes such as writing a cook book.

What Measures should be taken:

• A recipe can be considered a trade secret, so it’s worth looking into alternative measures to protect it such as limiting the participants for base ingredients in the manufacturing process and having your legal practitioner draft non-compete clauses, privacy policies, non-disclosure agreements and confidentiality clauses.

• Intellectual property can be protected through other ways, such as having a intellectual property clause in any employment contracts.

• Speak with an IP professional such as a Tarde Mark attorney or Intellectual Property lawyer and give thought to other aspects of IP protection you may gain for your food or beverage, such as the logo, brand name and also trade dress such as a unique jar or bottel. These items may possibly become registered trade marks and a valuable part of the business.

Are you a food or beverage manufacturer? Legum ILP has extensive experience working with consumer and botqiue brands in the food and beverage industry and consulting and advising on the protection of intellectual property. We can advise manufactures on what IP a business may have within a business the right legal mechansims of protecting and enforcing their intellectual property rights. Reach out to our FMCG team via info@legum.au or our contact page