LegaLogic Legasee IPR Newsletter: WHETHER FOOD INCLUDE ANY INTELLECTUAL PROPERTY?-March 2021
The food industry is a sector brimming with creativity and fast paced innovation. Nowadays taking pictures of food and sharing them online through social media has become a craze.` The trend has become so popular that entire blogs and YouTube channels are now devoted to food photography. Chefs, bakers, and food bloggers are constantly creating, adapting and following recipes in the pursuit of new ideas for delicious food and constantly been trained to enhance the visual experience of the creation of food by them, hence the same needs legal protection. There are museums dedicated to food, like the food museum in Hangzhou, China, where guests can gaze at pleasingly plated Chinese dishes along with New York’s Museum of Food and Drink and Chicago’s Foodseum.Many top chefs today are also known for their artistic food designs and preparations.
“Cooking is a piece of art and is to be showcased creatively, copyright law protects novel,creative appearances that are set up in a tangible means”
To enjoy copyright one should fulfil these three requirements:
a) Novel – The work is termed as “Novel” if the author has put his or her mind, skill and labour in the work with a certain degree of creativity. The food designs, preparations co- ordination or arrangement of dishes should be somewhat different from the pre-existing ones. In short unique design of food creations and plating should not be copied from pre-existing ones.
b) Falls within statutory definition of ‘work’- The outcome of food creativity and photography is certainly a work of artistic craftsmanship. They are always seen as artwork in the industry because of below mentioned reasons. 1. Plating is considered as the ability to create a ‘picture’ on a plate, 2. chefs do this with great perfection, exactness in colours, size and textures is emphasised, 3. Distinct cutlery is used to offer the right appeal. hence copyright is applicable to food creativity and photography because it falls under category as works of ‘artistic craftsmanship’.
c) Be fixed in a tangible form – Works such as photographs, sculptures and those of architecture are by their very nature fixed hence they are by nature covered under copyright act. But with respect to food creativity or photography, the food’s tangible form gets destroyed on consumption, hence the tangibility is not permanent. In India, fixation exists to meet the fundamental principle that ‘a copyright should protect the expression and not the idea’. To summarise in limited extent copyright may subsist in a food presentation or plating arrangement.
“Copyright law protect the rights of the author, artist or other originator of a creative work and also promotes creativity and learning”
TYPES OF INTELLECTUAL PROPERTY IN FOOD INDUSTRY
Below mentioned are the Intellectual properties which can be applicable in food industry.
1) Patents – If you make something that is both novel and non-obvious, sufficiently inventive, compared to what is already in the marketplace, you can register your idea as an invention.
2) Trademark or branding – Today branding is equally as important as the product itself and this is especially true for food companies. In the world of marketing, the term ‘brand’ is broad. But in IP, it is defined as “a symbol, word, or words legally registered or established by use as representing a company or product”. This is called a trademark. In the food industry, trademark and branding are everything, so not protecting them can be very dangerous.
3) Copyright – In the food industry, recipes are not protectable by copyright, but the creative content your food company generates such as website content, marketing content, blogs, original artwork and design. If your copyright registration holds up against scrutiny from others as being original, then it will last the creator’s lifetime, plus 70 years.
4) Trade secrets – In the food industry, unconventional and non-obvious ingredients, cooking practices and methods are indeed novel and patentable, especially if they create unexpected results and discoveries never seen. The scientific, physiological and physical aspects of the food you create as a result of existing ingredients, or unexpected and not-so-obvious ingredients can lead to patents that you can protect and enable your company to monetise.
IS REGISTRATION NECESSARY?
Indian law guzzles the idea of ‘First to Use,’ which basically implies that the main use can occur at anyplace on the planet joined by trans-fringe notoriety of the imprint in India. Regardless of whether it is absent in the Indian market, the way that it exists and is being utilized is adequate. On account of Arun Chopra v. Kaka-Ka Dhaba Pvt Ltd and Ors, the topic of law to be chosen by the court was whether the term “Kake” can be considered as the licensed innovation of an individual given that it is a typical word in the Punjabi language. Is it reasonable to have an imposing business model on making certain terms your trademark or a piece of it? The dispute was between a hotel known as Kake Da Hotel and a set of eateries that went by the name of KakekaDhaba, Kaka-Ka Restaurant, and Kaka-Ka Garden. The court passed an interim order to prevent any new restaurant from coming up with the term kake in the title, while the matter is still undecided. As of now, the eateries using the term ‘Kake ka’ are permitted to function.
IP protection can have a positive impact on the food industry by discouraging blatant and direct copying and by motivating chefs to come up with novel, unique, and creative culinary ideas. Copyright, patent and trademark law all have built-in limitations that would still allow chefs to continue to work in a collaborative environment without fear of liability. Chefs restaurants and food manufacturers interested in maximizing the value of their brands should therefore consider engaging IP attorney to determine whether their food designs are entitled to intellectual property protection and if so consider filing for protection.