No Pono When It’s Ono: How Do I Protect My Recipe from Copycats?
Maui has a flourishing food industry, from locally grown pickles and cookies that melt in your mouth to all-organic energy bars that are out of this world delicious. What gives these companies their competitive edge is often their recipe. A recipe is usually a combination of ingredients with a set of instructions for their preparation. Recipes can result in a very unusual or original dish or product, or a common product (like cookies) that are simply leagues above their competitors.
So how does an owner keep their competitive edge? Are recipes capable of intellectual property protection?
The short answer: yes, recipe protection is possible, but it’s rare.
Copyright protection extends to “original works of authorship fixed in any tangible medium of expression.” While food producers may regard their recipes as original works of authorship, the modern view regards recipes as merely factual lists of ingredients and therefore not copyrightable. Facts are not capable of copyright protection because they are not considered to be original creative works of authorship.
Cookbooks may be copyrightable to the extent of their selection and arrangement of materials; however, such protection is limited when applied to the factual material. So, the compilation of recipes (factual lists) are not copyrightable, except for the identical selection and arrangement of recipes and any photographs that may accompany them.
Moreover, copyright law is federally regulated and preempts state law. Therefore, state claims, such as conversion, quasi-contract or negligence, will likely fail because the claimant is essentially arguing copyright infringement within the scope of copyright law.
That said, there may be some ways to get legal protection for your recipe. By embellishing a recipe with expressive elements, you are giving it a creative and original enhancement that may be protectable. Such embellishments may include original illustrations, creative narratives about the sensual effects of the dish, suggestions about presentation, or tales about its historic or ethnic origin. Such additional elements might be protected under copyright even if the recipe itself is not protected.
Copyright usually would not prevent someone else from actually preparing the dish, from making a photograph of the dish, or from describing the recipe without using the same expressive elements as you used.
If a product or dish has a unique shape or layout that uniquely identifies you or your business, it may function as a trademark and capable of protection as a form of trade dress. For example, the unique shape of a Hershey kiss is protected as a trade dress; however, the recipe for the chocolate is not and cannot be the subject of trade dress protection.
If a particular recipe has been kept secret, it can be protected from theft as a trade secret. Think of the Coca-Cola formula or the recipe for KFC crispy chicken. Protecting a recipe as a trade secret requires taking active steps to keep the recipe secret. This means limiting access to just a few people who have a confidentiality obligation or have signed a non-disclosure agreement. Anyone visiting your facility should also be asked to sign a confidentiality agreement. You can also put a notice on each copy if the recipe stating something like “Confidential trade secret. Not for publication. All rights reserved.”
Trade secret protection will not prevent anyone from reverse-engineering your product, to the extent that they can. And once a recipe is disclosed to anyone who does not have a confidentiality obligation, it loses its trade secret protection.
The best way to protect your recipe is as a trade secret. However, you want to make sure you are taking active steps to keep your recipe secret. This means having the correct confidentiality and non-disclosure agreements in place and limiting access to your recipe to only a few trusted people who are subject to such non-disclosure agreements.
In some cases, limited copyright protection is possible, but generally recipes are not protectable as copyrights.