Food Patents, Copyrights, and Trademarks

I've been in the food business a very long time now. The business of big food is cutthroat and nasty at the best of times. At its worst, you've got threats from mafiosa and outlaw bikers; more bark than bite, thankfully. Still, the food industry moves very quickly. When a large retailer discovers they have a winner, they will seek to secure supply. Very often what happens with big box retailers is they will take a successful recipe that they see in the marketplace and reverse engineer it, bringing that to market.

One of the reasons we got into the food industry is because the food available in the market is often not what you think it is. The cost involved in preparation is exhorbitant for a start up and has gotten more and more complicated for the small business owner as we have become more and more conscious of food safety and traceability. Working with local producers gives us the ability to ensure our ingredients are fresh and the best we can possibly procure. We know that in doing this, regardless of whether our products get reverse engineered, we will win in the marketplace because of our particular choices of ingredients. It is the only way to truly differentiate a food product.

As a copacker this is our great skill; differentiating one food product from the next. So, it is possible for many different versions of the same type of food product to be in the market, manufactured by our company and they will all be completely different the one from the next.

One topic that fearful people keep bringing up in reference to food products involves protecting their recipe from theft. And, as we have learned ourselves, it is not a matter of IF your intellectual property will be stolen but rather a matter of when.

Of course, I am talking about intellectual property as pertains to food.

I hear the words; copyright, trademark, patent, recipe, formula, etc. thrown around as if they hold some magical protection for the chef.

When Greg and I first incorporated Brooks Pepperfire Foods, it was because someone who goes through life scamming people tried to sue Greg for the ownership of the recipes Greg had spent his lifetime developing and we needed to ensure our ability to operate in the marketplace.

Long story short, we won the lawsuit, but he appealed and in the end the judged ruled that we had to pay him $341.00 for the jars we used to launch the Peppermaster brand, but the judge scoffed at the idea that Greg had given the guy his life's work and declared the recipes were indeed Greg's. The judge also made it quite clear that because Greg had shared his recipes with his partner that should he be able to duplicate them in the marketplace, he'd have no recourse. We learned a lot about recipe ownership and the right to sell the food we make into the marketplace from that courtcase. It's pretty cut and dried. It's easy law to deal with. Remember these simple words: Unless and until you create something novel, recipes are simply "lists of facts", anyone can create them, and market dominance is your only hope.

This article will help clarify for you how to find your way around this environment.

Let's begin.

As a legal issue, historically, establishing intellectual property rights over a recipe is virtually impossible, although it can be done. Mostly because chefs copying another chef's recipe and putting their own spin on it is pretty much how the industry works. They say that imitation is the sincerest form of flattery.

The highwater mark for a recipe to receive intellectual property protections is that it be new and never heard of. So, unless you found or invented a new food, the novelty of your recipe is going to very difficult to prove. So, unfortunately, intellectually property protections in the food world or relegated to the look of your product or the name of your brand. Examples of patents in the food industry would include the Melitta coffee filter system, shelf-stable milk, and boneless fish. Typically though, a recipe is considered generally readily developable by any competent chef, so, it requires a special system such as Melitta, or a special process such as the milk or the fish. Even then, sometimes, that is insufficient to earn a patent, because the novelty is key.

As such most food companies will resort to using Trade Secrets legislation to protect their recipe. Coca-Cola is the most oft-cited and famous utilisation of this type of recipe protection. Essentially, you lock your recipe in a vault and tell it to no-one. Unfortunately, if someone guesses your recipe, you have no legal recourse. If you can maintain the secret, though, it can be extremely valuable. Although Coca-Cola had created a novel product and process that would be eligible for a patent, they deliberately chose to maintain the trade secret route so that at the end of the twenty year protection period they would not have to disclose their ingredients.

What other protections are there for you?

You can use copyright protections for many aspects of your food business; the text on your website, the words you use on your product label, or even the recipes you write that go with your product.

Copyright typically provides protection for literary, artistic, dramatic or musical works (including computer programs) and other subject-matter known as performer's performances, sound recordings and communication signals. So, for a food company this would include the text on their website, their branding, their recipe books, blogs, and videos, etc. The nice thing about copyright is that it is an automatic right in the country where the work was created.

The other security available to the Food Company is their trademark.

The biggest misunderstanding is that the trademark automatically protects the person with the trademark, and this is false. If you bother to file your trademark it does one thing for you. It gives you the right to use the trademark in your jurisdiction. That is all. You are also required to essentially fight to the death to keep that trademark should anyone else desire treading on it. Ideally, choose a trademark that will work for you, but one that you're not so married to that you won't have to change it should the wrong opponent come along.

As a copacker we often have questions about exclusivity for recipes by our clients. One of the reasons we choose to be a copacker rather than a wholesaler/retailer, was because we didn't want to find ourselves in competition with our clients. The other reason was because we wanted to help small businesses comply with the ever more complicated food regulations without jeopardizing their ingredients.

We work in food security and part of that is ensuring as many food products as are sought by the public as possible be converted to our food security philosophy as possible.