Question #10: Protection for Recipes and Product Designs

Question: I am entering the food and drink industry and would like to develop new products. What kind of protection can I get for recipes and product designs?

Answers: Here are some thoughts. The approach is to flag issues related to possible infringement of your products and of other people' products.

As far as recipes go, they are usually seen as statements of facts (just ingredients and directions) and therefore not protectable by copyright law. A collection of recipes is protected by copyright, and taking a number of them from the collection would arguably infringe the copyright of the collection. If there was sufficient description of the recipe to make it a literary expression, the recipe could then possibly find copyright protection.

The protection for recipes and manufacturing methods for food and drink products can be protected by trade secret law. While the ingredients are on the package, the formulations and methods of manufacturing are what is protected. If you purchase a franchise from DQ or Swensens, you will be given access to their trade secrets (and bound to secrecy). Trade secrets are not registered and their protection comes from their being kept secret, such as keeping the recipe for Coca-Cola in a vault. The protection is that no one else knows how to make what you do. Theft of trade secrets can result in both civil litigation and criminal prosecution. Trade secret protection does not protect the secret from independent discovery or reverse engineering. And once the secret is out, there is no further protection.

Product packaging can find protection from trade dress law under the Lanham Act, which also outlines trademark protection. A concern would be that the distinctiveness of the package. Packaging that utilize commonly known shapes have been found not to be distinctive enough for trade dress protection unless they have acquired a secondary meaning.

I wanted to outline the broad parameters that I think would apply. With this background, you could decide to work with an attorney to review the possible protection for each of your products.

Copyright 2013 by John T. Aquino. This article does not constitute a legal opinion and is intended for educational purposes only.