Unique recipes are created through the continuous testing of chefs or culinary experts, creating a dish that has never been seen in the world. So, are recipes protected by intellectual property rights and if so, how?
A recipe is a list of specific steps and ingredients used to create a dish. Recipes often include information about the ingredients needed, preparation steps, cooking steps, and how to serve the dish.
Recipes can be found in cookbooks, websites, video tutorials or from professional chefs. The recipes can be modified or altered to create your own versions with your own taste and culinary style.
Food names like McDonald’s Big Mac are often trademarked. However, the recipe to create that dish cannot be trademarked. Instead, registrants may consider applying for copyrighted recipes.
To register a recipe for copyright protection, the recipe needs to have a physical existence as recorded in a notebook or a cookbook for that dish, similar to the lyrics of a song or literary works.
However, this protection registration method will not make too much sense because copyright only protects the expression form, not the content and ideas of the work. That means that the copyright owner will have the right to prohibit other parties from copying the content of the recipe in written form for the purposes of selling, duplicating, etc., but cannot prohibit others from creating that dish using their formula for commercial use.
Accordingly, creators should consider registering recipes as trade secrets. In Vietnam, the form of trade secret registration has not been specified, often confused with patent registration, but in fact, the nature of the two types of property is different.
With a business secret, the owner will be responsible for taking all measures to protect that secret, for example, the recipe for making Coca cola products is the oldest trade secret today in the world scope.
While the secret is not legally discovered by different party (like reversing a recipe), the secret is protected. If there are acts such as spying or espionage to steal trade secrets, the competent authorities will intervene and handle the case, demand compensation and protect the interests of the owner of the trade secret.
However, once the secret is revealed in a legal way such as reverse engineering, randomly making duplicate products, the secret will no longer be protected as a trade secret. Currently, Coca Cola’s recipe has been found about 4 or 5 ingredients out of 9 ingredients, and when consumers, rival companies find all 9 ingredients (along with the manufacturing process), that will be the moment when Coca Cola is no longer protected as a trade secret.
However, keeping a recipe as a trade secret will have many advantages over other methods of applying for protection of intellectual property rights such as inventions, which only have a maximum protection period of 20 years. Coca Cola is a hundred-year-old brand and is still successful today, becoming a giant of the culinary world because in the beginning, the founder decided to protect the recipe of Coca Cola as a trade secret rather than registered as a patent which has the validity for 20 years.
The lesson learned is that if the creator feels his/her recipes are unique, but not to the extent of changing the world like Coca Cola as well as the belief in building such a huge beverage empire, they should apply for a patent to get a 20-year exclusivity, otherwise, the recipe should be kept as a trade secret without the need to be registered.
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