Is My Recipe My Intellectual Property?

If you think your chocolate cake recipe is exceptional, or believe you’ve designed the next ‘big thing’ in the culinary world, you might want to protect your recipe. There are different types of protection in intellectual property, for example:

  • Patents
  • Copyright
  • Registered design; and
  • Trade secrets.

Can You Patent a Recipe?

A patent is a legally enforceable right granted for a device, substance, method or process that is novel, inventive and useful.

Australian Legislation

The Patents Act 1990 requires applicants to satisfy the inventiveness test, ie require an inventive step that makes the unique. The Patents Commissioner can refuse to accept a patent request because the substance is either a simple mixture of known ingredients, or is produced merely by adding ingredients together (admixture).

A patent will generally only be applicable to pseudo-scientific recipes.

Can Copyright Apply?

The Copyright Act 1968 protects original expression of ideas, but not purely the idea itself. Once an idea or creative concept is documented, it is automatically protected by copyright in Australia.

In relation to a recipe, copyright can protect a recipe documented in a book in the way it’s written, but not the way it’s made. Therefore copyright does not extend to recipes if they are for the concept of something well known and reproduced (e.g. pasta or blueberry muffins).

If you publish a recipe book you also cannot prevent others making the dish or people writing their own descriptions of how to make it. Nor can you prevent someone publishing their version of your recipe.

Can You Use a Registered Design?

If your product’s appearance is unique, it is possible to register the design. A design is what makes a product look the way it does, e.g. its shape, configuration or a notable pattern. When applied to a product these things give it its unique design. A registered design does not protect how something works.

For instance, the creators of the “stand and stuff” taco registered its unique design. This type of intellectual property is rarely applicable when it comes to recipes.

Can You Protect Your Recipe as a Trade Secret?

If you want Grandma’s secret chocolate cake recipe to stay secret, one available option is protecting it through a trade secret.

A trade secret is intellectual property that it is up to you to protect – that is, it is not registered. This is generally done by ensuring employees or distributors sign confidentiality agreements.

Examples of trade secrets include:

  • the recipe for Coca-Cola
  • the combination of herbs and spices used in Kentucky Fried Chicken.

The Coca-Cola company has used trade secrets to keep its formula from becoming public for decades. It never applied for patent protection, so it was never required to disclose the formula.

Common law provides protection for infringement of trade secrets and breach of confidentiality agreements. A trade secret, however, doesn’t provide legal protection if a competitor has an identical product. It’s also difficult to prevent departing contractors and employees from taking the knowledge with them.

Important Tip: You could include a non-compete clause in all your contractor or employment agreements, as well as asking them to sign a confidentiality agreement.

In Summary

If you want to protect your recipe as intellectual property you may have to get creative. It is best you seek legal advice to see what option will work best for you. To speak with one of our friendly solicitors please get in touch with us on 9963 9800.