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Intellectual property for food products

View profile for Lizzie Walters
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Can you copyright a recipe?

If your business has spent time and money in developing a recipe or new product, you should be thinking about protecting it from competitors. But can you copyright a recipe and is this the best way to protect your work?

In the food sector in particular, copying ideas and new developments can sometimes be easy to do and it’s important to ensure your investment is protected. There are various ways of protecting a menu, recipe or new product. The most suitable method will depend upon what it is that actually needs protecting.

Copyright

Copyright may provide useful protection if the works have already been created, for example, a written recipe or instruction manual. Copyright of a recipe for example means that, with some exceptions, others cannot use the work without the creator’s permission. Copyright will automatically apply to a relevant work such as an original recipe and there is no registration system. The right is generally granted to the creator of the work in the first instance. The work must, for example, have involved “independent creative effort” and be original.

Copyright protection in the UK for an original written work lasts for the life of the creator plus 70 years from the end of the year in which they died.

Trademark

Registering a trademark is likely to be highly relevant form of protection for those in the food industry where large amounts of money are invested in developing brands. A trademark can be words, logos or a combination of both. A trademark must be renewed every ten years and the application fee starts at £170. Registering the words or logo gives you the exclusive right to use that mark for the goods and/or services it covers.

Examples of when a mark cannot be registered as a trademark, as relevant to the food industry, include where it:-

  1. Describes the goods or services or a characteristic of them;
  2. Has become customary in the line of trade;
  3. Is deceptive

 

Patent

If it is the actual mechanics of a recipe that needs protecting you may need to consider obtaining a patent. A patent is used to protect inventions where they are new, involve an inventive step and are capable of being made or used in industry. This may be applicable if you have invented a new way of making specific food product. The invention must be new and a patent cannot be applied for once it is in the public domain and it must not be an adaptation of previous products.

Patents can provide protection for up to 20 years, but must be renewed every five years.

Design

The appearance of a product can be protected by either a registered design or unregistered design right. A design is “the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or ornamentation”. The design must be new and have individual character. You can register a design in the UK for up to 12 months after it was first disclosed.

Registered designs give exclusive rights in the design in the UK for up to 25 years. Unregistered design right does not protect the article itself and can only protect the design if it can proven that it was intentionally copied.

Plant Breeders Rights

The final method of protection is to protect the actual plant itself. If you breed, develop or discover a new variety of plant then you can apply for Plant Breeders Rights over this variety. If successful you would be able to charge royalties for other people using the breed and nobody else could use the plant species without your authorisation. These rights only apply if the plants are used for commercial purposes but are generally valid for 25 years. You must pay an application fee, which depends on which crop it is you are seeking to protect. The plant breed must be new, distinct, uniform and able to be consistent after repeated propagation in order for the rights to be granted.

It is important to note that if you register the plant for Plant Breeders Rights under one name, you will not then be able to register a trademark against that name. In order to have the benefit of both, the plant will need to be registered for Plant Breeders Rights in a different name to that in which it will be marketed.

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