Starting a business in the food industry is extremely common, as the business opportunities available to you are endless. Whether you’re starting a food business or thinking of publishing some of your recipes online, there are many ways to start a successful food business venture. 

However, an important consideration is how to protect your recipes in such a competitive industry. Recipes can be considered your intellectual property due to the creative work and effort put into them, and like other forms of IP, there are a number of factors to consider when choosing the right way to ensure they are protected. 

What Is Intellectual Property?

Intellectual property is something that has been created from the mind, such as a novel, painting, song composition, logo or poem. Another way to describe IP is an intangible asset, which is often extremely valuable to the success and unique placement of your business in an industry. 

The four main types of intellectual property are:

The owner of intellectual property has exclusive rights to use it for commercial gain. 

How To Protect Intellectual Property

Intellectual property can be protected by registering it with the relevant body in Australia. That said, there are certain types of intellectual property that do not need to be registered. For example, in Australia, you do not need to register copyright as it automatically applies to the expression of ideas. 

The same goes for trade secrets – in order to consider something a trade secret, there is no application process. However, steps will need to be taken to ensure it remains a secret (more on this later). 

Trade marks and patents do need to be registered – this can be done through IP Australia.

Generally, it’s good business practice to consult a lawyer for a regular IP Health Check to ensure that your IP is well-protected as you go about your business activities – our lawyers can help you out with this. 

What Is Intellectual Property In Food Business?

In the food business, intellectual property can be found in a number of ways. If a restaurant has a logo or a slogan, that can be considered intellectual property. Even certain colours such as the very particular shade of purple that is closely associated with Cadbury chocolates has been registered a trade mark.

Can A Recipe Be Considered Intellectual Property?

Recipes are generally the backbone of the food industry. You may be wondering whether or not a recipe can be considered intellectual property. The answer is yes. However, while certain recipes can be considered intellectual property, they can still be harder to protect than other more common forms of intellectual property, such as a logo.

This does not mean that it is impossible to protect your recipes as intellectual property. Simply put, there are additional factors that need to be taken into consideration. 

Intellectual Property Rights In The Food Industry

Intellectual property rights are prevalent in the food industry. As the food industry covers a broad range of services and products, intellectual property rights can extend to a number of things including logos, scents, pictures, food products, recipes, books – the list goes on.  

How Do I Protect My Recipe Under IP Law?

Protecting your recipes under Intellectual property law will depend on the recipe itself, your intentions and the options you have in front of you. In some cases, it will be possible to register for intellectual property protection and in others, protecting your recipe will involve getting the right legal documents in place. Keep reading to learn more. 

Register A Trade Mark

Unfortunately, a recipe itself is unlikely to be registered as a trade mark. Despite the definition of what can constitute a trade mark being broad, recipes generally cannot fall under it. 

A trade mark is something that is unique and distinctive to a brand, which the public can use to identify it. An entire recipe is not typically registered as a trade mark. 

How Does Copyright Work In Australia?

Copyright gets applied automatically to the owner of an original piece of work, allowing them the ability to use that work as they please. For example, if you finish composing an original piece of music, then copyright is automatically applied to you. If someone uses that music in a video without your consent, then they are infringing your copyright

Copyright can apply to a recipe, however, enforcing it strictly can be challenging.  

Generally speaking, copyright for a common recipe is likely to not hold up. For example, if you post a recipe that details how to cook sourdough bread the way sourdough bread is usually prepared by everyone, it will be hard to enforce the copyright for it. 

On the other hand, if you publish a recipe book with original recipe ideas, then copyright will apply to the book and your recipes in it. If someone plagiarises the recipes, then you will likely have grounds to pursue action based on copyright infringement. 

However, copyright does not prevent other people from making your recipe, sharing it or creating their own versions of it. If you plan on putting your recipes out to the world, it’s good to be prepared for these scenarios. 

Can A Recipe Be A Trade Secret?

Yes, a recipe can be considered a trade secret. As we mentioned above, there’s no official registration of a trade secret. Rather, if you have something like a recipe that you wish to treat as a trade secret, then you should take precautions to ensure it doesn’t fall into the wrong hands. 

This can be done through legal documents such as Non-Disclosure Agreements or even Confidentiality Clauses

Sarah is a baker who spent years perfecting her chocolate cake recipe. As the recipe is her specialty, Sarah considers it a trade secret and ensures that all her employees sign a confidentiality clause in their Employment Agreements so her recipe isn’t revealed to anyone she didn’t consent to. 

How Does Patenting Work?

Once a patent is registered, it gives its creator the legal rights to use the design, process, method, substance or device. A patent, like other forms of intellectual property, needs to be registered with IP Australia. 

Getting a patent registered involves time and a comprehensive application process, where the item in question must meet all the requirements to qualify as a patent. 

Jeremey invents a new machine that can be used to cook vegetables. As the creation is completely original, innovative and useful, there is a good chance his application to have his design patented will be successful. 

Can I Patent A Food Recipe?

In very rare circumstances can a recipe be patented. In order for a recipe (or anything) to be patented, it must meet the requirements of being inventive, innovative, brand new and functional. Recipes are often not considered to be inventive or innovative as they involve putting already existing ingredients together. In any regard, it can also be difficult to prove that a recipe hasn’t been used by anyone else at another time. 

However, if a particular recipe does in fact lead to the creation of something new, then there is a chance that it can be patented. It must simply satisfy the requirements of a patent.  

Can You Publish Someone Else’s Recipe?

Publishing someone else’s recipe without their permission or crediting can be considered copyright infringement. Remember, recipes are still protected, original works. 

There is nothing preventing you from following the recipe, however, if you are going to publish another individual’s recipe, make sure you have their permission first. 

How Else Can I Protect My Intellectual Property?

In addition to legal agreements and registrations we mentioned, other measures that can aid in protecting your intellectual property include: 

  • Watermarking photos
  • Website terms and conditions 
  • Limiting who gets access to the intellectual property 
  • Password protections 
  • Intellectual property clauses in contracts 

The measures you take will depend heavily on your individual circumstances. No matter what it is, it’s always advisable to take some kind of steps to secure your intellectual property.  

Can I Protect My Recipe With A Non-Compete Clause?

Yes, a Non-Compete Clause is another way to protect your intellectual property. A Non-Compete Clause can prevent former employees or contractors from engaging in activity that puts your business’ secrets at risk. Since they had access to vital inside information during the course of their employment with you, there is the risk of them disclosing this information to your competitors. 

Non-Compete Clauses can extend by time or geographical limits (for example, the clause is effective for 6 months), however, it’s vital to have them drafted by a legal professional. Non-Compete Clauses that have not been drafted carefully can be deemed too restrictive to be enforceable by courts, therefore, it’s crucial to have an expert help you out here! 

Key Takeaways

Sharing your recipes and getting into the food industry is an exciting venture, however, it’s important to think about protecting your intellectual property in a competitive industry. To summarise what we’ve discussed: 

  • Intellectual property includes your intangible assets, so an original recipe can be considered  IP
  • It’s difficult to get a recipe registered as a trade mark or patent 
  • Copyright protections do apply to recipes, however, they cannot be enforced strictly 
  • A recipe can be considered a trade secret, so it’s worth looking into alternative measures to protect it such as non-compete clauses, privacy policies, non-disclosure agreements and confidentiality clauses 
  • Intellectual property can be protected through other ways, such as having a intellectual property clause in any contracts 
  • It’s imperative to never publish another’s recipe without their permission 

If you would like a consultation on protecting your recipes, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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