Culinary creations are part of the richness of French culture. Chefs of all levels are not lacking in originality in the creation of new flavours and culinary associations. Given this search for innovation, the protection of recipes seems to be a major issue since they constitute the core value of a restaurant.
1) How difficult is it to protect recipes under intellectual property law?
- The absence of copyright:
This right protects intellectual works provided that they are original and materialized. This concerns a multitude of creations: literary, musical, graphic, scientific, etc.
However, copyright only protects the form of the creation, which excludes ideas and concepts. For this reason, it has been recognised that cooking recipes cannot be protected by copyright since they “do not in themselves constitute an intellectual work”, but rather a know-how, which is similar to an idea (TGI Paris, 10 July 1974).
On the other hand, the text of a recipe could be protected if it is original. But this protection is not sufficient since it does not concern the content of the recipe: it focuses on the form of the recipe text.
- The rare culinary patents:
A patent is an industrial property title that allows the protection of a product or process that provides a new technical solution to a given technical problem.
Registration with the French National Institute of Intellectual Property (INPI) is necessary. Strict conditions must be met to benefit from this protection: novelty, inventive step, and industrial application.
Once registered, the patent grants a 20-year monopoly of exploitation from the day the application is filed.
If the recipe consists of a new and inventive culinary process and provides a technical solution to a technical problem, then patent protection could be considered. This was the case, for example, for the hot foie gras soup with chicken jelly,where the technical solution lies in the production of a soup in which the hot foie gras does not mix with the jelly (whereas normally the jelly liquefies with heat).
However, the procedure for obtaining a patent is costly, time-consuming and difficult, and few recipes address a technical solution while complying with the legal requirements of the patent.
- The limits of trademark law and design law:
- Protection of the name of the recipe:
The name of a recipe can be protected for its distinctive function through trademark law. A trademark is a sign that distinguishes the goods and services of a company from those of competitors.
A famous example of a recipe name registered as a trademark is “Praluline“, the name of the famous praline brioche of the Pralus company.
Trademark law grants a monopoly on the exploitation of the trademark for the goods and services designated by the applicant. To be protected as a trademark, the name or logo must be registered with the French National Institute of Intellectual Property (INPI). The trademark must meet the conditions of distinctiveness, availability, and lawfulness. Protection is valid for 10 years and can be renewed indefinitely.
Thus, a few considerations must be taken into account:
This law can be used to protect the particular shape of a product if this shape helps to identify the origin of the product, via the three-dimensional trademark. This was the case for the Brossard Distribution company, which succeeded in registering the visual of its famous marble cake as a three-dimensional trademark.
If the trademark only consists of the words describing the contents of the recipe, then it will not be eligible for protection, as it is not distinctive for the designated goods. For example, the rejection of the trademark “Mon huile de homard” (my lobster oil), filed to designate a lobster-based oil, was confirmed by the Court of Appeal of Rennes for lack of distinctiveness since it evoked the content of the recipe (CA Rennes, 3rd ch. com., 23 Oct. 2018, n° 18/01378). In addition, trademark applications indicating the geographical origin of a product may also be rejected.
In addition, the risk for a recipe name is to fall into the common language and lose its distinctiveness: the trademark could be subject to revocation by degeneration. This is the downside of success. Many famous recipes have gone through this, such as the famous Paris-Brest pastry, which was created for the Paris-Brest-Paris cycle race. This recipe name was distinctive at the time, which is no longer the case today due to its common use. This recipe name was distinctive at the time, which is no longer the case today due to its common use.
Finally, taste and smell trademarks (i.e. those related to a particular taste or smell) do not benefit from this protection as they cannot meet the condition of graphic representation, which requires that the subject matter of the protection be clearly and precisely represented (Article L711-1 of the French Intellectual Property Code).
- Protection of the visual of the recipe:
The aesthetic aspect of a dish can be protected by a design right. This right protects the appearance and ornamentation of an object, i.e., the lines, contours, colours, shapes, and textures.
The best-known example is that of Chef Alain Passard’s “Tarte bouquet de roses” (Rose bouquet pie).
This right arises through registration with the French National Institute of Intellectual Property (INPI). To benefit from this protection, strict conditions must be met: the creation must be new, have a distinctive, visible, and lawful character, and must not be dictated by technology.
After registration, the holder has a 5-year monopoly of exploitation from the date of filing, which can be extended to 25 years.
- A potential certificate of culinary creation?
A bill “relating to the protection of recipes and culinary creations” was submitted to the French National Assembly on 30 April 2019.
This bill aimed to create a new intellectual property title called “certificate of culinary creation” which would be issued by a “National Institute of Culinary Creation”. It proposed 20-year protection, halfway between patent law and copyright in terms of the conditions of obtention and the rights granted.
However, this bill would ultimately not be debated in the assembly, so the project would not be completed.
2) The alternative solution of confidentiality and non-disclosure agreement:
Confidentiality means keeping secret and securing any process, manufacturing formula, technical knowledge, documents or technical elements of a recipe. Many well-known products, such as those of major soft drink brands or spreads, use trade secrets to protect their recipes.
There is no time limit, as long as the secret exists. However, this does not confer any exclusive right to the content of the secret: another restaurant can develop a similar recipe without knowledge of the secret recipe.
In cases where the project must be disclosed to third parties, such as service providers or chefs working in the restaurant, to enable it to be carried out, this communication must be legally protected by a non-disclosure agreement and a confidentiality and non-competition clause in contracts, while at the same time mentioning in the reproductions of the recipe that it is a manufacturing secret.
It is recommended that proof of anteriority of the recipe should be obtained in the event of a dispute, as with the Copyright.eu service.
3) How to secure my copyright with the Copyright.eu service?
The Copyright.eu certificate of anteriority enables you to prove that your creations existed at a certain date and that you are the author. This type of service is important, as seen above, for example to secure one’s secret in case of a dispute.
It is, in fact, essential to obtain proof of anteriority to be able to prove that you are indeed the author of your creation at a certain date. This makes it easier to claim your rights, particularly in the event of future copying or challenge by a competitor or in the event of a dispute over confidentiality.
The Copyright.eu anteriority certificate provides indisputable proof of anteriority, through the intervention of a Bailiff (depending on the offer selected), but also through the qualified electronic timestamp, which has evidential value, including internationally.
Also, Copyright.eu certificates allow you to benefit from the right of prior personal possession, should another person subsequently file the same recipe for a patent. To find out more, we recommend that you read our fact sheet on securing inventions with the Copyright.eu certificate.
To apply for a Copyright.eu anteriority certificate, the process can be completed online. Please visit the following address: https://www.copyright.eu/depot-copyright-en-ligne/fonctionnement/
