- Getting a patent on a food product is possible but not easy. A patent attorney can help you navigate the law.
- Trademarking your unique beverage or food item is good for branding.
- Major corporations keep their secret recipes under wraps by making them trade secrets, and you can too.
Stealing recipes is a time-honored tradition for home cooks and professional chefs alike, but once you're in business for yourself, the prospect of someone replicating the recipes you've worked so long to develop is no laughing matter. Many restaurateurs and food industry pros are curious about what they can do to protect their original food products, and the idea of patenting a recipe is appealing.
If you're curious about how you can protect your original food or drink creations through patenting, trademarking, or creating and maintaining a trade secret, keep reading.
Can you patent a recipe?
The short answer is yes, patent protection can extend to a food or beverage, but don't get too excited yet. While it is possible to patent foods and trademark product names, the constraints are very narrow, and don't apply to the types of foods and beverages sold in most independent restaurants and stores.
A recipe may be successfully patented only if it meets several criteria. First, the recipe in question must be novel. That means it cannot be a food item previously familiar to the public or an obvious combination of pre-existing food items. For example, if you combine brownies with chocolate chip cookies and mix them with coffee ice cream for a flavor called coffee brownie chip, you'll have a tough time getting that recipe patented. The reason is, even if no one else has sold that exact combination before, the notion of combining candy and cookies into ice cream is well-trodden territory; therefore, it's not a novel product. If a fellow chef only has to taste your recipe to discern what's in it and how it was made, that's a surefire sign your recipe isn't novel enough for a patent.
Now, if you found a way to make coffee brownie chip ice cream with a unique food formulation or process, such as using spinach instead of milk and cream, or by freezing it in a way that's never been done before (if you invented the freezing process used, for example), you have a better shot at patent protection. Remember, a patent is for the protection of an original invention or product, so your recipe can't just be the best barbecue sauce ever – it must be something that breaks the mold in terms of formulation or process, or both.
These guidelines make it difficult, bordering on impossible, to protect recipes under patent law unless you are part of a food science lab, backed by a large food corporation, or part of a powerful chain or franchise. For most independent food retailers, restaurants, cafes, bakeries and boutique food companies, there's no point in trying to get patent protection. Don't despair; there are other ways to keep your original recipes safe from the competition.
How much does it cost to patent a recipe?
The costs associated with applying for a United States patent vary. The application fees are relatively affordable, ranging from $65 to a couple hundred dollars, but navigating the patent process isn't something most entrepreneurs can do on their own.
The real costs associated with obtaining a patent have to do with the fees charged by your patent attorney. A good patent attorney will help you get everything in order for your application, and put your invention on paper for the United States Patent and Trademark Office to process. Of course, a decent attorney isn't cheap, so if you're serious about obtaining a patent, plan on spending a couple thousand dollars at least. To learn more about getting a patent or what types of patents exist, check out our patent guide.
How long does a food patent last?
A United States patent typically lasts up to 20 years (in the case of a utility patent), but there is variation depending on the type of patent you get.
Patent law is complicated. As such, it's best practice to consult with an attorney who specializes in it before you go through the application process. A good patent attorney can tell you not only the likelihood that your patent will be approved but also the length of time that the patent will remain valid.
Trademarking a recipe is great for branding.
While patenting a recipe is extremely difficult, it is possible to trademark a recipe or food item for branding purposes. Trademarking the name of a food item won't prevent someone from stealing, recreating or selling your recipe, but it will prevent the competition from advertising it by the same name.
This is evident in the proliferation of "dupe" recipes online. It's not illegal for a chef to figure out how a popular soda is made and then publish the recipe, or even make it herself and sell it in her restaurant. However, she cannot give the soda the same name it goes by on grocery store shelves, because that name is trademarked.
Fast food and chain restaurants are great at the trademarking approach, but it can work for smaller businesses as well. In many cases of trademarked foods, the trademarked name eventually becomes more powerful than the food item itself. Anyone can cook a processed frozen burger, slap some dehydrated onions on top and sell it, but only one restaurant in the world can legally serve a Big Mac.
How do you establish trade secret protection?
You've likely heard the term "trade secret" before, and while a trade secret isn't legally binding on its own, trade secret protection is real. Making something a trade secret is probably the oldest and most effective way of protecting original recipes.
A trade secret essentially means that you have developed an internal system for maintaining secrecy. The key to maintaining a trade secret is having a trustworthy staff and staying tight-lipped about the secret ingredients and cooking processes for your bestsellers.
Famous trade secrets and why they work
It might seem impossible to keep a secret recipe under wraps for long, but plenty of big businesses do it successfully for decades. Some notable food and drink examples are the secret recipes for Coca-Cola and Dr. Pepper, KFC's secret chicken seasoning of 11 herbs and spices, Chick-fil-A sauce, and Bush's Baked Beans. Now, you might think, "Are those really still a secret?" After all, if you do a quick online search, you'll find that home cooks all over the country have published what they promise are copycat recipes for any of those famous trade secrets. In fact, if you try some of those knockoff recipes, you'll find the taste is nearly identical to the name-brand secret recipe, yet the big brands are still around and thriving – why?
Brands that rely on trade secrets typically have trademarks and brand recognition. By branding their products, like Coca-Cola or KFC, they create loyalty around the brand. When that loyalty is compounded by the idea of a "secret recipe," it leaves people turning to the tried-and-true brand rather than knockoffs.
After all, as long as KFC refuses to publish its secret recipe, at least some people will always wonder if the copycat recipes got it right. So basically, even if someone has figured out the secret recipe to Bush's Baked Beans or Chick-fil-A sauce, it doesn't really matter because of the power of trademarking combined with a trade secret.
How to use the law to enforce a trade secret
To increase trade secret protection, many companies require their employees to sign a nondisclosure agreement (NDA), which precludes the employees from relaying the specifics of business operations to people outside of the business, even after they leave the company. In this way, you can legally protect your trade secret. If you want to create an NDA for your employees, consult with an attorney who specializes in corporate law.
Is it illegal to steal a recipe, drink idea or promotion?
If you're pretty sure you've cracked the secret ingredient in your competitor's hot wing sauce or figured out how to make a replica of your local bar's mango margaritas, nothing is stopping you from making and selling the same product. Likewise, you can compete with local businesses by positioning competing promotions on the same days your competitors offer promotions. However, be careful about the language used in your advertising, and consider the potential unintended side effects of running a copycat business.
Since a name can be trademarked much easier than a recipe, you should err on the side of caution and avoid calling your wings by the exact same name as the restaurant down the street. Chains are particularly notorious for trademarking foods and beverages, but small businesses can do it too.
Offering promotions to compete with local businesses is a good idea, but you may be better off thinking of your own promotion ideas rather than copying other restaurants and bars.
Even though promotions themselves (unlike the names of promotions) aren't legally protected, being perceived as behind the curve and lacking your own unique marketing ideas may give you a poor reputation in the local business community.