Intellectual property on the food platter? Proof is in the pudding

While some restaurants abroad have successfully protected their recipes, prior art can prove to be a hurdle in patenting innovative cuisine

Dipender Tiwari, executive chef at Qla restaurant in Mehrauli, says he is constantly on the lookout for new native ingredients to come up with unique dishes at the restaurant. He says he sometimes spends months developing and perfecting the look and feel of his dishes.

When asked if his any creation is protected by law, Tiwari says he does not know the legal process of protecting his creations in the food industry.

Safir Anand, senior partner at Anand and Anand, explains there are many reasons why patenting is not rampant in the food industry for plating techniques. “One of the main reasons is that it is extremely tough to beat the concept of prior art to be able to secure a patent,” he says.

Simply put, prior art means knowledge or information already available in the public domain and to secure a patent, one of the primary requirements is that the new cuisine should be inventive.

The law defines a new invention as “…any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art;…”

 However, this does not mean that a unique curation cannot be protected by law, although it’s a tough task. Some of the options that can be considered are copyright protection, design protection, and even trade dress protection, although even here many criteria need to be met before being considered for protection.

 Fans of the TV show MasterChef Australia might remember the iconic deserts of Reynold Poernomo. One of the most recent ones was his recreation of the golden snitch desert from the Harry Potter movies or, if you’re a purist, from the books. The resemblance was uncanny and the golden snitch was complete with a golden ball, and wings made out of chocolate, and resting over a heap of white sorbet.

 The look of the dish is invariably the first thing a person notices before eating. The appearance of dishes and food plating style are among other aspects of trade dress that can be protected if they are sufficiently reputed to indicate the source of the dish.

 “It can be said that the presentation of a dish is akin to a painting or any other original piece of art. A recipe, if reduced to writing, may get protected as a literary work,” says Meghna Mishra, partner at Karanjawala & Company.

 Whether the presentation of food can be protected as copyright, as well, is yet to be decided, but there have been instances abroad where restaurants have claimed rights to the appearance of their dishes. “For example, one case involved trade dress infringement of Breakfast at Tiffany’s cupcake featuring a vanilla cake, blue cream cheese frosting, and silver and white gems,” says Anand.

 A series of court cases internationally protected the distinctive décor of Mr Submarine restaurants which included a red and white striped exterior, wallpapered interiors, and signage bearing a certain font and colours. Likewise, the distinct elements of a restaurant, such as Ronald McDonald and the golden arches of McDonald’s, have all been protected as trademarks.

 Additionally, recipes may be protected as trade secrets as they form business information that derives value from secrecy. Currently, there is no specific law in India for trade secrets but courts have upheld trade secrets protection under various statutes and common law actions based on principles of equity.

 Manish Mehrotra, chef at Indian Accent restaurants, says there are several problems regarding the protection of plating styles, one particular is the novelty of the plating. “Our dish may be served with a unique style in our restaurant but the same dish may be served outside without the unique plating style. How will one protect such a recipe?” he asks.

 To be eligible for patent protection, an invention must be novel, have an inventive step, and be capable of industrial application. These criteria are tough to meet for recipes or plating styles as there are explicit exceptions in the Patents legislation also which specifically indicates that a substance obtained by mere admixture results only in the aggregation of the properties of the components thereof or a process for producing such substance is not considered patentable. The legislation also specifically rules out patent protection for artistic work or any other aesthetic creation whatsoever.

“Assuming plating is considered as an artistic work or an aesthetic representation to qualifying for copyright protection, it specifically cannot be protected as a patent,” Anand said.

 Another aspect of the Intellectual Property issues in the food business is the protection of recipes under copyright law. The idea-expression dichotomy prevents the recipes to be protected by copyright. “The dichotomy is the distinction between ideas and expression which establishes a boundary between ideas that are not covered by copyright law and the expression of those ideas that may be covered by copyright law,” said Anu Monga, partner at Anant Law.

 However, when there is a distinction between basic recipes and those that communicate more than simply the guidelines for preparing a given recipe, such recipes may be protected by copyright. Such recipes must be accompanied by “substantial literary expression.” In other words, there must be an explanation or detailed directions. 

 “For example, a chef cannot claim ownership of a chocolate cake recipe. However, the chef can claim ownership of the recipe by using his methods of expression, in the written or video form,” says Monga.

 Even when recipes cannot be protected under copyright, they can be protected under trade secrets. For example, the signature 11-spice blend of KFCs chicken marinate and the Coca-Cola recipe are not public knowledge and are protected as a trade secret, known only to a handful of employees. 

 “If the chefs decide to share these techniques, they make sure that they are covered by non-disclosure and confidentiality agreements. However, such recipes are not protected under copyright as such unless the recipe is artistically explained by the chef itself,” says Monga.

 However, Chef and Author Anahita Dhondy says the recipes are part of legacies and they need not be protected by law by one person. “If I created a recipe and it gets copied, it is a compliment. Recipes are alive through generations,” she says.

 Talking about how a recipe may have different origins, she says, “For example, the Tunday Kebab is prepared in certain places but it may differ. The time and year of creation may be difficult to trace.”

 While lawyers and chefs may debate the protection of food under intellectual property in India, there is a clear absence of a body of legislation regarding plating styles when compared to other countries. “This critical and strict requirement of what constitutes a patent may be the reason for the lack of patent protection for recipes. As far as copyright is concerned, the recipe may be transcribed and protected, however, enforceability is a question yet to be decided,” Anand adds.

No piece of cake

Internationally, food plating is covered in three IP categories: Design patents, Trade Dress, and Copyright. 

Design Patents: A design patent is used to protect both functional and non-functional aspects of a food item, such as the shape of the food item, the packaging, or the plating style. Some examples of design patents would include the protection of the shape of the Mars Candy and the protection of spiral-cut french fries.

An example of protecting food plating in design patent is the Blazevich “serving tray with shrimp”, which was awarded a design patent for being unique in terms of plating and presenting the food item. The plating was a shrimp and tray combination, including a shrimp tray having an outer retaining ridge and an inner support ridge. A groove is formed between the inner and outer ridges. 

Trade dress: A trade dress protects the attributes associated with a specific product's overall aesthetic appeal. As a result, trade dress laws provide still another means of shielding plating concepts. 

In the case of Powerful Katinka, Inc. v McFarland 07 Civ. 6036 (SAS), Rebecca Charles, owner and executive chef of Pearl Oyster Bar, filed a trade dress infringement claim against her former sous chef, Edward McFarland. It was alleged that McFarland’s new restaurant, Ed’s Lobster Bar, infringed Charles’ restaurant’s trade dress including the presentation of recipes. Eventually, McFarland had to change certain parts of his menu to settle the infringement suit.

Similarly, in N.Y. Pizzeria, Inc. v. Syal No. 3:13-CV-335, at *2 (S.D. Tex. Oct. 20, 2014), while adjudicating a trade dress infringement claim relating to plating methods the court observed that ‘food plating may be protected under the trade dress law if it is distinctive and a party may be able to prove trade dress infringement if there is the likelihood of confusion. 

Therefore, if food plating is distinctive and different from the plating techniques used by other restaurants to serve the same recipe, it may be protected under trade dress legislation. 

Copyright: Food plating is an artistic work. A lot of creativity is required for every design, texture, layer, and placement of the various food components in the recipe. As a result, the finished product of the food plating process is a piece of art that is protected as intellectual property since it has aesthetic value.

 In the case of Publications Int’l., Ltd. v. Meredith Corp. (88 F.3d 473 (1996)), the U.S. Court explained that certain recipes may be copyrightable, as there is a difference between barebones recipes and those that ‘convey more than simply the directions for producing a certain dish’. 

Trademark: A trademark can be any word, phrase, symbol, design, or combination of these things that identifies your goods or services. It's how customers recognize you in the marketplace and distinguish you from your competitors.

SoHo's Dominique Ansel Bakery debuted its croissant-donut hybrid in May 2013 and called it Cronut®. Ansel and his lawyer, Candice Cook, applied to register the name "Cronut" on May 19, 2013 -- nine days after the item's launch -- to protect his much-hyped pastry from copycats.