Earlier, we looked at whether you could patent your recipe – perhaps you are Cronuts’ inventor, or your coconut yoghurt cake is a community favourite. We now turn our attention to what options are available for protecting your intellectual property if you can’t patent your recipe.
One available option is protecting your recipe through a trade secret. A trade secret is both a type of intellectual property and a strategy to protect confidential information including some technology or proprietary knowledge.
Trade secrets are typically used when you are unable to register your product and can include constructing or formulating a product that cannot be reverse engineered. Unlike a patent, they also offer long term protection. A familiar example of a trade secret is Coca-Cola. The company did not apply for a patent, but the recipe has remained a secret from the public for decades.
What Do Trade Secrets Protect?
A trade secret doesn’t provide legal protection if a competitor has an identical product. It’s difficult to prevent departing contractors and employees leaving the business from taking the knowledge with them. It is then prudent to include a non-compete clause in all your contractor or employment agreements, as well as asking them to sign a confidentiality agreement.
The common law provides recourse for breaches of trade secrets, confidentiality agreements and passing off trade marks.
Your recipe may also attract protection through copyright. Copyright is automatic in Australia and under the Copyright Act 1968 protects an original expression of ideas, not merely the idea itself.
Copyright protects a recipe documented in a recipe book, namely how it’s expressed. Copyright does not extend to recipes if they are for the concept of something well known and reproduced (e.g. bread, pasta or pancakes).
The recipe’s copyright owner is limited in dictating how others can use the written recipe. For example, you cannot prevent others making the dish or people writing their descriptions of how to make it. Amateur chefs and cooks commonly adapt recipes from other authors and re-appropriate recipes.
As mentioned above, copyright does not protect ideas. It does not then protect techniques or methods. You cannot prevent someone publishing their version of your recipe.
Recipes and Trademarks
You can protect brand loyalty by registering a trade mark and develop a competitive advantage by preventing imitators passing off as your brand.
If your product’s overall appearance is unique, it is possible to register the design. For instance, the creators of the “stand and stuff” taco registered its unique design.
If at first you don’t succeed, try try again. Although you may not have much success patenting your recipe in Australia, you can still protect your intellectual property through a trade secret or trade mark. If you have any questions, ask our intellectual property lawyers on 1300 544 755.