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So, your banoffee pie has won first place in the community baking competition three years in a row and you are now thinking big picture. You want to start selling your delicious baked goods on a larger scale, but how do you protect the valuable intellectual property you have built up in your recipe? This article explains why you cannot patent your recipe and how to protect your intellectual property.
Why Can’t I Patent My Recipe?
Broadly speaking, most recipes lack the necessary inventive step to be protected by patent protection. To apply for a patent, your invention must:
- satisfy the inventiveness test; and
- be sufficiently novel.
If your recipe produces an edible product as a result of mixing or cooking ingredients, you are unlikely to be successful in applying for a patent. However, the good news is that this is not the end of the road for your banoffee pie business dream. There are other ways you can protect secret recipes.
Trade Secrets
One available option is protecting your recipe through a trade secret. A trade secret is both a:
- type of intellectual property; and
- strategy to protect confidential information which includes some technology or proprietary knowledge.
Trade secrets are not registered and protection will cease if the knowledge becomes public.
How Do I Maintain a Trade Secret?
To meaningfully maintain a trade secret as a valuable form of intellectual property, you need to make sure you have certain measures in place with your employees and competitors. Some actions that you might consider implementing are:
- limiting access of confidential information on electronic devices;
- incorporating clauses in your employment contracts, such as confidentiality clauses and non-compete clauses (to make sure your employees cannot take your recipe and open up their own cafe);
- entering into confidentiality agreements with suppliers, manufacturers or other contractors.
It is best to have these types of agreements in place to ensure you have some recourse if things go wrong and your trade secret becomes public.
Continue reading this article below the formCopyright
Your recipe may also attract protection through copyright. In Australia, copyright is an automatic form of intellectual property protection of the original expression of ideas, not merely the idea itself. This includes the creative expression of literary works, such as unique recipes. However, copyright does not extend to recipes if they are for a well known and broadly reproduced substance (e.g. basic bread, pasta or pancake recipes).
Even if you have written a special recipe, there are certain limits to what copyright protects.
Trade Marks
If you develop a unique name, logo, slogan or other form of brand representation associated with your recipe, you could consider applying to register a trade mark to prevent imitators from passing it off as your brand. Having a registered trade mark gives you the exclusive right to use your brand in connection with the types of goods and services you are providing. If you have come up with a distinctive name for your recipe, you could consider applying for a trademark to protect this. Without a trade mark, you may still have some protection under passing off laws.
Registered Design
The other type of intellectual property protection you could consider applying for is a registered design. This would be particularly appropriate if the result of your recipe yields a unique design.
Key Takeaways
If you have been working on your recipe for your special chilli sauce or slow-cooked beef brisket for a while, you do not want others to take advantage of your hard work. Although you may not have much success patenting your recipe in Australia, you can still protect your intellectual property through a trade secret. Copyright protection may also offer you some protection in your unique recipe as a literary work.
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