Protection of culinary creations – Lexology

Nowadays, there is still a debate on the different forms of protection that could protect culinary or gastronomic creations by means of industrial and intellectual property rights.

With regard to copyright, it must be considered that, in order to ensure the protection of the flavor or the taste perception of a product, it is necessary to define whether the “flavour” or the taste perception of a product can be considered as a “piece of work”, that is to say the intellectual creation of an author.

However, recent European case law (case Levola Hengelo BV v Smilde Food BV593) prohibits considering a “flavour” as a work for the purposes of copyright protection (Guideline 2011/29/EC), since the perception of taste requires its objective delimitation based on something that can be material (recipe) or immaterial, through the product or the gastronomic creation. It should be noted that copyright grants an exclusive right to reproduce the physical medium on which the idea is expressed. All this is due to the difficulty of delimiting the object to be protected, given the subjectivity inherent in taste perception.

An alternative protection for taste perceptions would be through trademark law as an unconventional mark. However, we are faced with a series of difficulties due to the subjectivity of perception regarding its distinctive capacity and its representation; therefore, this means of protection is also not sufficient, as is the case with copyright.

If we turn to the protection by patent of invention of a gastronomic creation, we must consider that its elaboration must have a technical character, which would make it possible to protect, for example, the devices used in the elaboration of gastronomic creations , a pressure cooker, a saucepan or even a food processor.

On the other hand, a culinary recipe would fall under a procedure for obtaining a product (the final creation), for which patent protection could, in principle, be sought. However, any invention intended to be protected in this way must respect, among other things, the conditions of patentability: novelty, inventive step and industrial applicability. While novelty requires that there has been no prior disclosure equal to the development intended to be protected and industrial applicability requires that the invention be marketable, the inventive step requirement stands in the way of protection. recipes, since it is difficult to demonstrate that the order of the stages of the production process or the quantities of each ingredient have a technical effect different from that already known. Inventive step is based on the perception of the obviousness of the own invention for an average expert in the field. Varying the proportions of ingredients or substituting equivalent foods could hinder the grant of a patent in these cases.

There is an industrial property title which makes it possible to protect more modest developments or compositions (food preparations): the utility model. This title offers protection for 10 years from its application (compared to 20 provided for by a patent) and its condition of inventive step is less demanding. Thus, in recent years, the utility model has imposed itself in the protection of gastronomic facilities. This title, once granted, is a useful legal tool to exclude competitors from the market or fight against possible offenders.

From all the above, its protection is subject to future scientific advances in order to be able to objectively delimit and circumvent the subjective nature of a taste perception.

However, the foregoing (the “recipe” itself and, therefore, the “flavor”) could be protected by the figure of trade secrecy and, for this purpose, must comply with the requirements demanded by the Secrets Act Trade Secrets (Law 1/2019, from 20 February, on Trade Secrets (LSE)). The said law considers any information or technological, scientific, industrial, commercial, organizational or financial know-how as a business secret. The formulation of a perfume, aroma, non-patentable or not yet patented inventions, business strategies and financial plans, among others, could be included, provided that the know-how or information obtained by the company have, real or potential commercial value, by keeping them secret, offering a competitive advantage to its owner. Whether it be secret, i.e. known to a limited number of people and cannot be deduced by experts in the field by observation or reverse engineering; or be subject to reasonable or specific measures to keep these secret, measures which will obviously have to be adopted by the owner of said information or know-how.

Thus, the taste perception of a product or a gastronomic creation could be additionally protected by the figure of a manufacturing secret, provided that it can comply with the requirements set by law.

Marjorie N. McClure