Anastasia Omelchenko

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.

In accordance with Art. 82 of the Arbitration Code of the Russian Federation, parties participating in the case are entitled to file an appropriate petition with the court for the appointment of an examination of the case. At such a request or with the consent of the persons participating in the case, in order to clarify issues requiring special knowledge, the court appoints an expert examination on the case under consideration. The court also appoints an expert examination on its own initiative, regardless of the consent of the persons participating in the case, in cases where the appointment of an expert examination is prescribed by law or provided for by an agreement, or is necessary to verify a statement about the falsification of evidence, or if an additional or repeated expert examination is required. An arbitration court shall issue an appropriate ruling on the appointment of an expert examination or on the rejection of a petition for the appointment of an expert examination.The regulatory framework governing the activities of conducting an examination is made up of the relevant norms of the Arbitration Code of the Russian Federation, Federal Law No. 73-FZ of May 31, 2001 "On State Forensic Expertise Activities in the Russian Federation" (hereinafter referred to as the Law on Expertise), as well as the Decree of the Plenum The Supreme Arbitration Court of the Russian Federation dated 04.04.2014 N 23 "On Some Issues of the Practice of Application by Arbitration Courts of the Legislation on Expertise" (hereinafter - Resolution of the Plenum No. 23). On the basis of Article 41(1) of the Law on Expertise, a forensic examination may be carried out outside state forensic institutions by persons with special knowledge in the field of science, technology, art, or craft, but who are not state forensic experts. Non-state forensic activities and non-state experts are also subject to the relevant provisions of the Law on Expertise.In accordance with paragraph 3 of Art. 82 of the Arbitration Procedure Code of the Russian Federation, the persons participating in the case have the right to apply for the involvement of the persons indicated by them as experts or for the conduct of an examination in a specific expert institution. Paragraph 2 of Decree of the Plenum No. 23 states that when ordering an examination of a person who is not a state forensic expert, the court also finds out information about his education, specialty, work experience, and position held and indicates them in the ruling on the appointment of an examination (Art. 82).The aforementioned regulatory legal acts establish requirements for the activities of an expert, non-compliance with which may be the basis for the removal of an expert. In particular, the grounds for challenge are established in Art. 21 and 23 of the Arbitration Code of the Russian Federation.In accordance with Art. 23 of the Arbitration Code in the cases provided for by Art. 21 of the Arbitration Code, the grounds for disqualification of an expert are:Conducting an audit or inspection by an expert, the materials of which have become a reason for applying to an arbitration court or are used in the consideration of a case;If the expert is a relative of the person participating in the case or his representative;If the expert is personally, directly, or indirectly interested in the outcome of the case, or there are other circumstances that may cast doubt on his impartiality;If the expert is or was previously in official or other dependence on the person participating in the case or his representative;If the expert made public statements or gave an assessment on the merits of the case under consideration.In addition, Art. 16 of the Law on Expertise states that an expert is not entitled to:enter into personal contact with the participants in the proceedings, if this casts doubt on his disinterest in the outcome of the case;independently collect materials for the production of a forensic examination;inform anyone about the results of the forensic examination, with the exception of the body or person who appointed it;destroy objects of research or significantly change their properties without the permission of the body or person who ordered the forensic examination.Based on paragraph 3 of Art. 82 of the Arbitration Procedure Code of the Russian Federation, one of the rights of the persons participating in the case is the right to challenge the expert. At the same time, according to the legal position of the Constitutional Court of the Russian Federation dated July 17, 2012 No. 1409-O, the obligation of the expert to declare self-withdrawal is established, as well as the obligation to withdraw the expert from participation in the forensic examination and the need to immediately terminate its production, if it is entrusted to him, in the presence of the stipulated procedural statutory grounds, including when interested in the outcome of the case. This definition also states that the provisions of Article 24 of the Arbitration Procedure Code of the Russian Federation do not imply arbitrary application: if there are grounds established by Articles 21 and 23 of this Code, consideration of the issue of challenging an expert is not a right, but an obligation of the arbitration court considering a specific case.In accordance with paragraph 2 of Article 24 of the Arbitration Procedure Code of the Russian Federation, self-withdrawal or challenge must be motivated and declared before the start of the consideration of the case on the merits. During the consideration of the case, an application for self-withdrawal or challenge is allowed only if the grounds for self-withdrawal or challenge became known to the person declaring self-withdrawal or challenge after the commencement of the consideration of the case on the merits.Judicial practice on the challenges of an expert in disputes related to intellectual property is rather scarce. First of all, this may be due to the fact that the facts that may serve as grounds for possible subsequent removal of an expert are usually considered by the court before issuing a ruling on the appointment of an expert examination in the case on the basis of information about the expert provided by the persons participating in the case. Let us consider the cases of challenges of experts in cases related to intellectual property.By the ruling of the Court for Intellectual Property Rights dated October 26, 2020, in case No. SIP-978/2019, the applications of third parties who do not file independent claims regarding the subject of the dispute (hereinafter referred to as third parties) on the removal of expert Vladimir Khoroshkeev, as well as on the removal of the expert candidacy Lisovenko Viktor Borisovich in view of the following. The third person, when motivating doubts about the lack of interest and impartiality of the expert, refers to the fact that the expert Khoroshkeev V.A. from 1985 to 1991, worked in the previous federal-state institution of the Federal Institute of Industrial Property (FIPS) as a state patent examiner. This fact, according to the third party, testified to the official or other dependence of the person participating in the case. Furthermore, the third party pointed out that the expert opinion of Khoroshkeev V.A. contained additional conclusions on issues not raised by the court, and the expert's answers to these questions could be a legal assessment of the disputed decision of Rospatent, which is the exclusive prerogative of the court. These circumstances, according to the third party, could also indicate the existence of doubts about the impartiality of the expert. Assessing the above arguments, the court pointed to the absence in the case file of information about the work of Khoroshkeev V.A. in an organization that is the legal successor of FIPS. At the same time, the court agreed with the argument of a third party on the additional conclusions contained in the conclusion and on the basis that the expert was personally, directly, or indirectly interested in the outcome of the case, granted the application for the challenge of the expert Khoroshkeev V.A. This ground is provided for by subparagraph 5 of part 1 of article 21 of the Arbitration Procedure Code of the Russian Federation.Also in the present case, the applicant applied for the removal of expert V.B. Lisovenko. In particular, the applicant pointed out that this expert worked in a company that provided patent and representation services to another third party in the case under consideration. In this case, the court also saw grounds for challenging the expert under subparagraph 5 of part 1 of article 21 of the Arbitration Procedure Code of the Russian Federation - personal, direct, or indirect interest in the outcome of the case, or the presence of other circumstances that may cast doubt on his impartiality.By the decision of the Court for Intellectual Property Rights in case No. SIP-664/2018 of 03/07/2019, the application of a foreign person to challenge the expert Pasynok M.S. was satisfied. This statement was motivated by the fact that from 03/04/2005 to 05/07/2008 the named expert worked at FIPS as a patent expert, and, therefore, was in official or other dependence on the person participating in the case. According to the evidence available in the case file, the court concluded that Pasynok M.S. previously was in official or other dependence on the person participating in the case, and on the basis of subparagraph 6 of part 1 of article 21 of the Arbitration Procedure Code of the Russian Federation satisfied the application of the foreign person to challenge the expert.There is much more judicial practice on the rejection by the courts of petitions to challenge an expert. Thus, in case No. SIP-909/2019, by a ruling dated 12/09/2020, the court of the first instance refused to satisfy the application for the challenge of expert Korchagin I.I. The court of cassation also did not see a contradiction between the refusal to challenge this expert. There were also refusals to satisfy the demands for the removal of experts in cases No. SIP-708/2018, SIP-567/2020, A40-256459/2019, SIP-783/2019, SIP-676/2019, A70-9233/2016, SIP -685/2017, SIP-158/2014, SIP-134/2013.An analysis of judicial practice has shown that in disputes related to intellectual property, the courts satisfied the requirements to challenge experts on the basis of subparagraphs 5 and 6 of part 1 of Article 21 of the Arbitration Procedure Code of the Russian Federation, by virtue of which an expert cannot participate in the consideration of the case and is subject to challenge if he personally, is directly or indirectly interested in the outcome of the case, or there are other circumstances that may raise doubts about his impartiality, as well as if he is or was previously in official or other dependence on the person participating in the case, or his representative.Thus, when entrusting an examination to a person who is not a state forensic expert, the persons participating in the case should be as careful as possible about the candidates for experts proposed for consideration by the court.