Earlier this month, the Court of Justice of the European Union held that the taste of a food product cannot be classified as a work protectable by copyright.

This decision appears to be in line with U.S. Copyright law, which does not include the taste of a food product among one of the eight types of copyrightable works. U.S. Copyright law also does not protect recipes that are mere listings of ingredients, no matter how original or delicious the resulting food product. However, the U.S. Copyright Office will register a copyright in a compilation of recipes, such as in a cookbook.

When it comes to protecting food itself, U.S. entities usually start by closely guarding recipes that provide a unique flavor profile – i.e., trade secret. The recipes for Bush’s baked beans, KFC fried chicken, and Dr. Pepper soda are a few examples of food products protected by trade secrets. But trade secret rights are not always easy to enforce, and do not preclude others from reverse-engineering a secret recipe. Nor does it preclude the permanent loss of trade secret status after a secret recipe is disclosed, even if inadvertently.

Given the challenges to protecting the taste of a food, food brands often turn to protecting another important aspect: the food’s appearance. After all, the way a food product looks often drives the purchasing decision, suggesting that the appearance is an equally—if not more—important aspect worth protecting.

Culinary innovators wishing to protect the appearance of their food creations may consider using design patents or trade dress. To qualify for design patent protection, the visual aspects of a food product must be novel and non-obvious. Alternatively or in addition, they may be protectable by trade dress if distinctive and nonfunctional.

Protectable visual aspects can include, for example, a food product’s exterior shape, color, texture, or a combination thereof, as shown by the following patented or registered trade dress designs for food products:

U.S. Design Patent No. D806,350 – Pastry

U.S. Design Patent No. D588,328 – Cheese Wheel

U.S. Trademark Reg. No. 2142003 – Cookie configured in the shape of an unshelled peanut

Protectable visual aspects of a food need not be limited to their exterior, as shown by the registered trade dress for the layered arrangement of the filling of SNICKERS candy bars:

U.S. Reg. No. 5047574

Those interested in maximizing and protecting the value of their culinary creations should take a holistic approach to evaluating what aspects of their food products may qualify for intellectual property protection and which IP rights constitute the “cream of the crop” for the particular food. With the proper IP rights, it may be possible to have your cake and eat it too!

This article appeared in the November 2018 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.

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