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Author
Anastasia Omelchenko

Paralegal

16 January 2023

How to protect a recipe?

The French philosopher, culinary specialist, lawyer of the 18-19th centuries, Jean Antelme Brillat-Savarin, wrote in one of his books: “Tell me what you eat; I'll tell you who you are." Indeed, every day we are faced with various variations of food preparation - from simple-cooked products to the most complex gourmet dishes. The recipe of this or that dish can be associated with a certain person, become the hallmark of a chef, a restaurant, and even an entire country. But how can a recipe be legally protected?


Art. 1225 of the Civil Code of the Russian Federation provides a list of protected results of intellectual activity and means of individualization. In accordance with paragraph 33 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 "On the application of part four of the Civil Code of the Russian Federation" (hereinafter - Decree No. 10), this list is exhaustive. A culinary recipe is not explicitly listed as a protected intellectual property object, however, under current law, a recipe can be protected in several ways, which will be discussed below.


1) Copyright. In paragraph 5 of Art. 1259 of the Civil Code of the Russian Federation clearly states that "copyrights do not apply to ideas, concepts, principles, methods, processes, systems, methods , solutions to technical, organizational or other problems, discoveries, facts, programming languages, geological information about the subsoil." Accordingly, a culinary recipe cannot be copyrighted as an idea, concept, method, process, system or way of preparing a dish that a person has thought up in his head and not put into an objective form. At the same time, paragraph 1 of the above article contains an open list of objects of copyright, one of which is works of literature.


The current legislation provides for two criteria by which a work is granted legal protection: creative nature (according to Article 1257 of the Civil Code of the Russian Federation) and expression in an objective form (according to paragraph 3 of Article 1259 of the Civil Code of the Russian Federation). In this regard, if these criteria are theoretically met, a culinary recipe can be granted legal protection as a work of literature, but in practice it is extremely difficult to give the text of a recipe a creative character.


At the same time, by virtue of paragraph 2 of Art. 1260 of the Civil Code of the Russian Federation: “the compiler of a collection and the author of another composite work (an anthology, encyclopedia, database, website, atlas or other similar work) owns the copyright for the selection or arrangement of materials (compilation) they have carried out.” This allows us to conclude that in the collection of recipes, from the point of view of copyright, the selection or arrangement of the recipes themselves, and not the text of the recipe as such, can be protected.


2) Patent law. In accordance with paragraph 1 of Art. 1345 of the Civil Code of the Russian Federation, patent rights are intellectual rights to inventions, utility models and industrial designs.


2.1) Invention. According to Art. 1350 of the Civil Code of the Russian Federation: “as an invention, a technical solution is protected in any field related to a product (in particular, a device, substance, microorganism strain, plant or animal cell culture) or a method (the process of performing actions on a material object using material means), including the use of the product or method for a particular purpose.” . In this regard, the recipe may be granted legal protection as an invention under the patent of the Russian Federation as a method of preparing a particular dish. However, it should be noted that the above article also specifies the conditions for granting legal protection to the invention: novelty, inventive step and industrial applicability. Only under these conditions can a culinary recipe be protected as an invention.


The fourth part of the civil code reveals the conditions for the patentability of an invention. Thus, an invention is new if it is not known from the prior art. This means that the recipe intended for registration as an invention must be different from all previously created inventions included in the known state of the art, i.e. differ from the information that became publicly available in the world before the priority date of the invention. With respect to the second condition of patentability, an invention has an inventive step if it does not clearly follow from the state of the art for a person skilled in the art. This criterion of so-called "non-obviousness" means that a patent for an invention can only be granted in relation to a recipe that is truly an innovative result of the creative work of the inventor of the recipe. Finally, the third condition for patentability is industrial applicability - that is, the possibility of use in industry, agriculture, health care, other sectors of the economy or in the social sphere. In other words, a recipe should not just be an idea or idea: there should be a real possibility of preparing a dish according to such a recipe.


Examples of culinary recipes patented as inventions are: RF patent No. 2 765 208 "Method of obtaining glazed french fries", No. 2 759 671 "Method of preparing the culinary product" Mini-rolls of pancakes "", No. 2 732 321 "Waffle product or air extruded grain product”, № 2 764 299 “Method of making sweet potato pie”.


It is important to understand that in this case, right protection is granted to the method of preparation of a particular dish, and not to its final result.


2.2) Industrial model. In accordance with paragraph 1 of Art. 1352 of the Civil Code of the Russian Federation “as an industrial design, the solution of the appearance of a product of industrial or handicraft production is protected.

An industrial design is granted legal protection if it is new and original by its essential features.

The essential features of an industrial design include features that determine the aesthetic features of the appearance of the product, in particular the shape, configuration, ornament, combination of colors, lines, contours of the product, texture or texture of the material of the product.

Features that are solely due to the technical function of the product are not protected features of an industrial design.


A dish will be new if the totality of its essential features of appearance (i.e., features that determine the aesthetic features of the appearance) is not known from information that became publicly available in the world before the priority date of the industrial design. A dish will be original if its essential features are due to the creative nature of the features of the dish, in particular if, from the information that has become publicly available in the world before the industrial design priority date, there is no known solution to the appearance of a dish of similar purpose that produces the same general impression on an informed consumer as it does an industrial design reflected in the images of the appearance of the dish.


Thus, in this case, legal protection will not be granted to the method of preparation, but to the appearance of the dish, if it is new and original.


This design protection method is widely used to protect the appearance of confectionery products. For example, RF patent No. 80349 for a group of industrial designs “Portion cake (2 options) (product as a whole) and a portion of cake (2 options) (independent part of the product), RF patent No. 55134 for an industrial design “Pancho cake”, RF patent No. 62144 for the industrial design "Sancho Cake", RF patent No. 59195 for the industrial design "Almond Cake", RF patent No. 131703 for the industrial design "Dimien Cake".


As for judicial practice, within the framework of arbitration case No. A65-5946 / 2012, an application was considered to prohibit the illegal use of patent No. industrial design in the amount of 300,000 rubles. By the decision of the court of first instance, the claims were partially satisfied: the defendant was obliged to change the design of the appearance of the cake "Parizhanka", remove from the design of the appearance of the cake elements protected by the patent of the Russian Federation No. 75330 for an industrial design, and also pay compensation in the amount of 100,000 rubles. By the decision of the Eleventh Arbitration Court of Appeal of 09.10.2012 in case No. А65-5946/2012, the decision of the court of first instance remained unchanged.


3) Production secret (know-how). In accordance with paragraph 1 of Art. 1465 of the Civil Code of the Russian Federation “a secret of production (know-how) is information of any nature (industrial, technical, economic, organizational and others) about the results of intellectual activity in the scientific and technical field and about methods of carrying out professional activities that have actual or potential commercial value due to their being unknown to third parties , if third parties do not have free access to such information on a legal basis and the owner of such information takes reasonable measures to maintain their confidentiality, including by introducing a trade secret regime. By virtue of clause 144 of Decree No. 10 , “preserving the confidentiality of information precisely by introducing a trade secret regime is not mandatory.”. In addition, as an object of intellectual property, a production secret (know-how) is not subject to mandatory state registration.


Information about the secret of production (know-how) is not published in any open registry and third parties do not have access to it. Thus, this way of legal protection of a culinary recipe is suitable if the owner of the recipe has the goal of keeping it secret.


The most famous examples of recipes in the world protected as a secret of production (know-how) are: the recipe for the soft drink Coca - Cola, the recipe for butter beer from the magical world of Harry Potter, the recipe for the world-famous donuts Krispy Kreme, the recipe for red vermouth MARTINI ROSSO, KFC chicken recipe, Heinz tomato ketchup recipe.


Thus, depending on the purpose pursued by the author of the prescription, there are several ways of legal protection of such a prescription. However, when determining how to protect a culinary recipe, it is necessary to determine what exactly is important in the protection of a culinary recipe: the selection or arrangement of recipes in a collection, the method of preparation, the appearance of the dish, or the confidentiality of the recipe.

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