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Intellectual Property Rights in Food Innovation

One of the F&B industry’s responses to the current unprecedented challenges has been to fight back with a fresh wave of food innovation. Many chefs and entrepreneurs have been busy creating new recipes, food combinations / fusions and innovations relating to how food is designed, ordered, prepared, served and delivered. This has led to many of our F&B clients asking how they can protect their investment in these new food concepts so we thought it would be useful to share a few guidelines:

· Your Brand: Trademark rights are likely exist in your company brand name, the food product name and anything that identifies the products as being yours. If you have invented a new word for your product such as Sugoi’s “Noritacos” (a mix of Nori seaweed and Tacos) or “Cronut” (a mix of croissant and a donut) you may also be able to protect that as a trademark. You cannot however trademark something that is merely descriptive of an existing generic food product e.g. “Bangers and Mash” and prevent others from using that name.

· The Recipe: This is arguably the hardest element to protect and you would need to look at a wide variety of rights:

o Trade Secrets: This is one of the most useful IP tools to protect a recipe and has been used successfully by the likes of Coca Cola for their drink recipe. This requires that the recipe is kept secret from third parties and an assessment of who in the business (e.g. Head Chefs only or a wider team) is given access to the recipes. This can be difficult to achieve in large restaurant chains (but can be mitigated by non-disclosure agreements and electronic access to recipes), especially when considering the statutory obligations to inform customers of the ingredients of each dish.

o Copyright: This will protect original literary expression of the idea (i.e. the written description of the recipes / the cook book type instructions whether in your Nans note book or Jamie Oliver’s cookbook you got for Christmas) rather than the idea itself or a simple list of ingredients. This however only protects the original written form from being copied and would not be able to prevent others from actually making the same dish. Copyright is also unlikely to exist in the actual ‘taste’ of food, at least that was the view taken in a European case, due to the fact that it cannot be expressed in a sufficiently precise or objective way.

o Database rights: These may exist in a book which is a collection of recipes, however this is very limited in its scope of protection.

o Patents: This is one of the most powerful IP rights but also has the highest hurdles to obtain protection in terms of proving the necessary elements of novelty, inventiveness and capable of industrial application. To be successful, you would need to prove that the recipe is not currently in the market and that it would not have been obvious to another skilled chef. This is likely to be of more interest to developers of food products such as Cadbury’s non-melting chocolate, meat and dairy alternatives or cultured or cell-based meat.

· Food Photos / Instagram: Copyright will exist in the photos of the finished dish and you can prevent others using your photos without your consent.

· Food Service: The way the food is served could also be capable of protection e.g. the now famous ‘Salt Bae Sprinkle’, which you can witness at Nusr-Et Steakhouse in Dubai and Abu Dhabi. For those that haven’t visited yet, the move essentially involves sprinkling salt over the server’s forearm onto the meat. The Turkish chef was successful in obtaining a European Union motion trademark for the sprinkle but interesting not in relation to food and drink classes, although he was successful in this class in the United States.

· Your Food Tech: Many of the successful F&B companies in the current market have a leading advantage due to their technology whether an App for ordering, tracking calories or a farm to plate offering. Tech regardless of sector is fairly easy to protect in terms of copyright in the source code etc. but you will need to ensure assignment of any IP created by any third parties e.g. contractors who actually write the code, develop the App or website etc.

Ownership of IP is rarely simple and things get further complicated in the event of collaborations between chefs/restaurants and other ownership issues such as does the Head Chef own their signature dish or does his/her employer? Also with the developments in artificial intelligence, ‘computer chefs’ are now producing innovative dishes which brings its own IP ownership issues.

The above are just a few points to consider and you should always discuss your specific situation with a specialist IP lawyer. If you would like any advice in relation to IP protection or developing or protecting your F&B products or brands please contact The Bench lawyers are highly ranked for Intellectual Property in the UAE by all the leading legal directories such as Legal 500, Chambers & Partners and Who’s Who Legal and we specialise in the Middle East hospitality and F&B industries. Legal 500, IP, 2019 commented ‘Client-focused, efficient and unstuffy’, The Bench scores highly for its ‘genuinely international understanding of IP issues’.

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