The secret sauce: protecting IP rights in recipes

Making delicious products is critical to the success of a food and beverage business, and formulating the best recipes requires significant R&D investment.

How can businesses protect their investment against competitors who want to imitate successful products by copying recipes? From boutique chocolatiers to multinational food manufacturers, having a strategy to protect recipes and formulations is key.

Yet under Australian law, there is no single “recipe right”. Instead manufacturers need to consider a mixed-bag of more general intellectual property (IP) rights. This requires navigating a range of laws, regarding copyright, patents, trade secrets, and trade marks, each of which are directed to protecting different aspects. Understanding how these rights operate (and their limits) is important when developing a recipe protection strategy.

A useful starting point: ideas vs expression

A key distinction in IP law is the difference between protecting an idea versus protecting a specific expression of that idea.

A recipe recorded in an original human-authored document (eg, a product specification sheet) can be protected by copyright. However, this is limited to that particular expression, so different expressions that convey the same ideas may avoid copyright issues.

To protect the underlying ideas in a recipe requires consideration of patents and trade secrets.

If a successful recipe leads to consumers associating a product with a particular brand, then trade marks offer a further line of defence.

For food businesses, the challenge lies in identifying which aspects of a recipe or formulation fall within each category.

Copyright: protecting written recipes

Copyright law provides free automatic protection for original literary works, including human-authored original recipes. However, copyright protects only the expression of the recipe, not the underlying idea it embodies.

Relying on copyright protection alone can leave gaps in coverage:

• Simple ingredients lists may be easy to re-write without infringing copyright.
• Reworking recipes with minor ingredient tweaks could avoid copyright issues.
• The taste, texture, and appearance of products may be expressed in different words, so these aspects are not easily protected by copyright.

While valuable, copyright should not be relied on as the only tool for protecting commercially valuable formulations – it should be regarded as just one part of a larger set of protections.

Consider the recent dispute between Nagi Maehashi (RecipeTin Eats founder) and Brooke Bellamy (Bake with Brooki). Maehashi made public allegations against Bellamy, however Maehashi hasn’t commenced legal proceedings. While one can only guess as to Maehashi’s reasons for this, an important consideration would be the difficulty in making out a claim of infringement before a Court considering the limitations of copyright protection for recipes as ideas.

Patents: protecting technical innovations

Patents protect “inventions” which include novel and non-obvious innovations in product compositions, manufacturing methods, and processes that provide a technical solution to a problem.

For food and beverage businesses, patents can potentially cover:

• novel food compositions;
• unique manufacturing processes;
• innovative preservation techniques;
• texture-modifying technologies; and
• functional formulations delivering measurable health outcomes.

However, not every recipe is patentable and the bar is set high, so to qualify a recipe would at least need to be:

• Novel: the recipe must not have been publicly used before anywhere in or outside Australia (including not being mentioned in a previously filed patent).
• Inventive: it’s sufficiently enough to what already exists so that a food/beverage expert would not see it as an “obvious” variation from previous recipes.

Given this, a variation of a known cake recipe is unlikely to meet the threshold for patent protection. However, some successful food patents include:

• Harland Sanders’ (aka Colonel Sanders) US patent 3245800 for “Process of producing fried chicken under pressure”;
• Korean stretchy cheese – or patent KR101986792B1 for “Manufacturing method for high melt cheese with improved ability to stretching”; and
• various patents for imitation meat – in mid-2020 there were around 258 patent families for foods directed to imitate animal meat (according to a study from IP Australia).

Importantly, patent protection is a trade-off: the invention must eventually be publicly disclosed in the patent specification prior to grant. Once published, a formulation becomes public knowledge although, in exchange, the recipient of a patent receives a powerful but time-limited monopoly (generally 20 years from filing).

For some businesses (particularly those in food tech, alternative proteins or functional foods) patents can be commercially valuable. For others, sharing the “secret sauce” may be commercially unattractive (eg Coca-Cola).

Trade secrets: often the most powerful protection

Given limitations in copyright and patent law, trade secrets can often be the most practical and effective way to protect recipes.

A trade secret can protect a recipe which hasn’t been shared publicly and which is only shared with people who have a legal obligation to keep the recipe details secret.

A classic example is the Coca-Cola formula. Apparently the only written version of the formula has been locked away for over 100 years, and currently sits in a vault at the World of Coca-Cola in Atlanta. According to the company, only two anonymous employees know the complete formula at any given time.

Unlike patents, trade secrets require taking active steps to avoid public disclosure. Protection can last indefinitely for as long as secrecy is actively maintained. However, trade secrets can be vulnerable if confidentiality measures are inadequate or the product can be easily reverse-engineered.

Maintaining trade secret protection may involve:

• restricting access to full formulations to authorised personnel;
• sourcing ingredients from different suppliers who are contractually prevented from sharing information;
• establishing confidentiality agreements with employees and contractors;
• carefully drafting supply and manufacturing agreements to cover trade secret protection;
• implementing internal IP governance policies and staff training to avoid data leaks.

In practice, many successful brands rely heavily on trade secrets, particularly where a formulation would be difficult to reverse engineer or where patent disclosure would benefit competitors.

Trade marks: protecting the brand as an extension of a recipe

While trade marks don’t protect recipes per se, they can protect brand reputation established from successfully commercialising a recipe. Businesses can build comprehensive portfolios of trade marks to protect various brands and product lines and different formats including:

• product names;
• logos;
• distinctive taglines implying formulations;
• shapes or colours for products (in limited circumstances).

Trade marks are often the most commercially significant IP asset of many food and beverage businesses. Even if competitors can develop similar formulations, trade marks prevent such products being marketed in a way that tricks consumers into thinking competing products are the genuine article.

Strong branding can effectively “own” a product category in consumers’ minds, even where the underlying recipe is not exclusive. For example:

• A distinctive name for a sauce, such as TABASCO (there are 6 trade mark registrations for this word alone);
• A recognisable chocolate bar shape such as Toblerone, which owns trade mark registration 706789 for chocolate confectionary:

Trade mark registration can be highly effective because it provides exclusive rights to use of a mark in connection with the nominated goods and services.

Strategic considerations for food businesses

Clearly there is no one-size-fits-all approach. Protection strategies depend on factors such as:

• Can a recipe be easily reverse engineered?
• Does a recipe involve a real technical innovation?
• Is speed to market more important than long-term exclusivity?
• Is the product part of a larger branded portfolio?

In practice, many food businesses adopt a layered strategy:

• Patents for genuinely novel technical developments;
• Trade secrets for core formulations and processes;
• Trade marks for public facing products and brand identity;
• Copyright for key recipe documentation and marketing materials.

Crucially, any decisions about IP protection should be made before public disclosure. Launching a product, pitching to investors, or sharing new recipes with manufacturers without appropriate safeguards can create unintended negative consequences.

Practical steps

Businesses investing in and developing new recipes and formulations should consider:

• Conducting an IP audit early in the product development process.
• Assessing patentability before commercial launch.
• Implementing confidentiality protocols.
• Registering key trade marks in relevant jurisdictions.
• Ensuring employment and contractor agreements contain robust IP and confidentiality provisions.

Conclusion

Recipes sit at the intersection of creativity, science, and commerce. While no single IP right protects a recipe, the strategic use of patents, copyright, trade secrets and trade marks allows food businesses to safeguard their competitive edge.

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