Gousto Legal Counsel

Recipe meal kits, which provide fresh ingredients and all the necessary spices and spices pre-portioned with the accompanying recipes, have boomed during the pandemic. Subscription services such as Hello Fresh, Gousto, Mindful Chef, and Pasta Evangelists all offer such kits. Year-over-year, Hello Fresh saw a 74.2% increase in active users globally in the first three months of 2021[6], reporting new consumption habits and increased interest in using meal kits compared to shopping at the supermarket for separate ingredients. Fresh pasta rival Pasta Evangelists estimates an increase in sales of more than 300% in 2020.[7] Restaurant chain Dishoom then hit M&S for allegedly using the recipe for their signature chili-egg-bacon-naan roll,[11] which they also offer as a recipe kit for the home. M&S shared a photo of a chili egg and bacon naan rolls on Instagram with a side recipe and video tutorial. Source: www.timeout.com/london/news/m-s-criticised-by-dishoom-for-their-somewhat-familiar-bacon-naan-recipe-070521 The recipe revolution: subscription services and home cookware continue to grow in popularity The lockdown has led to an increase in sales of curry pastes, powders and spices in particular. The increase in time spent at home has also accelerated the shift away from ready meals and pizzas[3], although the demand for plant-based ready meals has increased[4]. Recognising the environmental impact of what we eat, a YouGov survey[5] also found that more than half of us now use freezers to store batch cooked food and reduce food waste. Bring the Bacon Home: Current Intellectual Property Litigation in the Food and Beverage Sector Some literary expressions of recipes and accompanying photographs may be protected by copyright, as may other written works and photographs. However, copyright in a recipe as a literary work would allow you to prevent people from reproducing the recipe in that particular form – that is, it would only protect against republishing the written recipe itself, but not against copying the actual edible edition of it. These rights do not apply to the recipe itself, and copyright on a particular phrase of a recipe in a cookbook does not protect a restaurant from copying the recipe and putting the dish on its own menu. So what about the specific combination and amount of ingredients and cooking steps? We are sorry, but in order to access this content, you must consent to the cookie category “targeting cookies”.

Update your settings now, and then reload the page. Source: www.hellofresh.com/eat/meal-kits-for-singles There is no explicit exclusion for subject matter requirements under UK Patent Act or the European Patent Convention as such, although patent protection is rarely obtained for certain formulations as it is difficult to demonstrate the novelty and inventive step required. No matter how unique and revolutionary a chef may be, most recipes are simply different combinations of familiar ingredients that come together without any unexpected technical effects. Most EU countries have an unfair competition law, not a resolution law. This varies from country to country in terms of what it will protect, but it usually doesn`t require the same element of confusion or misrepresentation as sharing, making it a potentially more fertile ground for dispute in some cases. In recent years, there have been high-profile intellectual property disputes in the food and beverage sector, many of which involved leading brands versus discount stores. For example, M&S made headlines in 2021 when it accused Aldi`s “Cuthbert the Caterpillar” cake of infringing on its “Colin the Caterpillar” brand. Recipes and their associated products may also be marketed under distinctive names (think McDonald`s “Big Mac” or Burger King`s “Whopper”) or distinctive forms (think Oreo Cookie), which can then be protected by trademarks. Nusret Gökçe, known in the industry as “Salt Bae”, even managed to register a trademark registered in the EU for his 2017 viral video in which he sprinkles salt on meat[10]. Trademark owners can stop competitors if there is a likelihood of confusion with their trademark or if the earlier mark is known and there is an unfair advantage or disadvantage in what the competitor is doing. Major players in the food and beverage industry are also participating, with Nestlé acquiring Simply Cook earlier this year to bolster its direct offering in the UK[8].

Simply Cook kits contain pre-portioned herbal and spice blends combined with easy-to-understand recipes to accompany fresh ingredients purchased separately. In today`s climate of unique culinary creations, recipes are a valuable business asset, especially for companies that offer recipe subscription kits[9]. But how do you protect revenue and how do you establish different types of intellectual property rights in this part of the food and beverage sector? In the United Kingdom and other common law countries, it is also possible to create enforceable rights in a name or product called “misleading marketing” rights through the use of these signs in commerce. However, these may be more difficult to argue than a registered trademark because (a) the applicant must prove the existence of such rights (without the benefit of a single trademark registration certificate) and (b) the courts require that there be an element of confusion or misrepresentation that does not always exist if consumers were not actually confused between the two offers. Of course, patent protection can also be obtained for other aspects related to recipes or ingredients, such as manufacturing or processing methods and packaging – so companies can still do a lot to protect their edible innovations. The food and beverage sector has evolved rapidly, taking advantage of developments that, in some cases, were already underway. There is a huge opportunity for the industry to adapt and capitalize on the changing consumer trends resulting from working from home and the increased interest in simple, healthy and low-waste meals. If you`re a food and beverage company, your intellectual property has to work harder than ever for you, but the potential rewards are bigger than ever. Revenue enforcement: establishing intellectual property rights in the food and beverage sector Trade secrets can be effective if an order is strictly confidential, although there is always a potential risk of reverse engineering by third parties. Trade secrets can also be difficult to disclose, as it can be difficult to tell if an alleged infringer copied an order or simply relied on trial and error to develop something similar. This is especially true for recipes such as restaurant dishes, which may be easier to bone than the chemical formulation of a homogeneous item such as a soft drink.

Preparing a storm: copyright for culinary creations But it is not impossible – patents have been granted at the EPO for replica meat, among others[14], although these topics are usually concerned with the composition of ingredients used in food production, rather than recipes for cooking at home or in restaurants per se. In the UK, a patent was also granted for a fish and chips paste, which proved inventive as it reduces oil absorption during the frying process.[15] A good recipe starts with the right balance of ingredients. Similarly, a successful IP strategy will balance your immediate business goals with the long-term protection of your intellectual property. We`re here to give you factual, trade-oriented advice, not to provide you with information – so you can find the right combination of protection for your intellectual property. So what can be done to protect recipes that are already publicly available (for example, that can no longer be protected as trade secrets), such as those published on blogs and printed with recipe kits? KFC`s fried chicken recipe, which contains eleven secret herbs and spices, is known to be protected as a trade secret, as are other world-famous assets such as the Coca-Cola recipe.