With the development of the restaurant business and the emergence of numerous cafes, restaurants and bars, their owners are faced with the question of how to increase their competitiveness. To achieve this goal, they develop a unique design for their cafes and restaurants, organize original and comfortable places for clients to relax, and strive to create signature dishes with names that are attractive to them. All this requires not only significant financial and time expenditures, but also creative efforts.
And in this case the question arises about the legal protection of the results of intellectual activity. If methods or technology for preparing a dish can be patented as an invention, and a unique design of new dishes can be patented as an industrial design, then can copyright be used to protect the original recipe?
The clear answer is no. Culinary recipes cannot be protected by copyright, since in accordance with the Civil Code of the Russian Federation, the objects of copyright (Article 1259 of the Civil Code) are not: ideas, concepts, principles, methods, processes, systems and methods, and a recipe is a method of preparing a dish.
However, if they are described in a book, deposited its pages and published, then the collection itself - its design, illustrations, text will be protected by copyright and it cannot be republished under a different name, because the collection as a literary work created by the creative work of the author is protected by law. But anyone interested can use the recipes published in it after purchasing it.
That is, copyright on recipes allows you to protect only the creative approach to them, but not the recipe itself.
The most reliable option for protecting the unique recipe of a new dish is protection as know-how.
An example of this is Coca-Cola, KFC and many other brands of well-known companies that want to maintain their monopoly in the market, because after the end of patent protection the recipe remains unprotected.
Therefore, to protect a recipe as know-how, it is necessary, firstly, to introduce a trade secret regime at the enterprise (Article 10 Protection of Confidentiality of Information of the Federal Law of July 29, 2004 No. 98-FZ Ed. dated August 8, 2023 “On Trade Secrets”) and clearly indicate in documents the object of a trade secret, notifying all employees and contractors. The documents must also indicate the possibility of applying penalties to persons who violated the trade secret regime and disclosed information.
The company's management must exercise control over the implementation of the trade secret regime. Otherwise, if the information becomes publicly available, it will be impossible to prohibit everyone from using the recipe.
To comply with the trade secret regime, it is important:
- indicate information that should be kept secret;
- close access to it;
- prescribe the procedure for employees and contractors to access secrets, including a clause on non-disclosure and penalties in case of information leakage;
- keep mandatory records of all persons admitted to the secret of production, having previously taken from them a receipt confirming responsibility for the violation.
All documents related to trade secrets should be marked “Trade secret” indicating the name and address of the owner.
It should be noted that protecting a unique dish recipe as know-how has its advantages and disadvantages.
Thus, a big advantage of keeping a recipe as a trade secret, which is valid for an unlimited time (as long as the information is kept secret), can be the possibility of selling it, as well as transferring the license to other persons or by concluding a franchising agreement, which allows you to receive additional income.
A significant disadvantage may be the end of the trade secret regime due to the fact that the recipe can be discovered by other specialists or in the event of a specialist moving to a competitor. At the same time, he can use the recipe, slightly changing the gramming of the ingredients or including new components.
The danger of violation of the regime can also occur if, after an information leak, the recipe is used by a person who did not sign the non-disclosure documents.
Thus, preserving the unique recipe of a dish as know-how requires the creation of strict conditions to prevent the disclosure of information about the recipe. Kept secret, it becomes not only a source of income for the company, but also, being an object of intellectual property, a valuable intangible asset that can be sold or transferred for temporary use to others for a fee.
Only a non-standardly designed collection as a work of literature can be protected by copyright, and the temporal priority of authorship can be established by the date of its deposit.
