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Wednesday, September 4, 2013

Protecting Grandma's Secret Recipe

By Steven Shape, IP Attorney

Typically, recipes are not legally owned by anyone. Take for example the large number of recipes you can find online, all free for the public's use.

A family recipe can be protected by trade secret law (the Coca-Cola formula and KFC’s secret recipe of 11 herbs and spices are famous examples), but only if your family member has carefully maintained the recipe under lock and key and hasn't shared it with anyone before, or has insisted that everyone sign a non-disclosure agreement before seeing the recipe. All of which are highly unlikely. Typically, trade secret protection is used and preferred by larger companies.

It is not typical to obtain utility patent protection on a recipe because recipes usually aren't inventions. Patents are the most expensive form of IP to acquire so they're best for big ticket inventions which will have significant commercial impact over a shorter period of time.

Copyright protection is not available, as a list of ingredients and instructions are not copyrightable. Specifically, mere listings of ingredients in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, it is possible to create a cookbook of many recipes and copyright that literary work.

The best choice to protect your recipe and launch a marketing campaign may be a trademark. If you choose a unique and distinctive trademark, and develop impactful and attractive advertising, you could sell the product made from a recipe. Marketing in this manner may allow you to beat others to market, while forming a strong bond between your brand and consumers. You might consider requiring your manufacturers and vendors to keep the recipe as a confidential trade secret under a non-disclosure agreement, but your real protection may very well be in selling the product under your trademark and grow your brand.

Disclaimer: Please note that this article does not constitute legal advice, and should not be relied on, since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This post does not create an attorney-client relationship.

© 2013 Steven M. Shape  All Rights Reserved.

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