The cooking recipe is used by each individual, whether in the family and private setting, or in the professional setting. Images and photographs of gastronomic content invade our daily lives, on television, in the media, in the street. Impossible not to see a book of traditional recipes or chef's recipes in a bookstore.
Cooking recipes are now within everyone's reach. Any person could voluntarily or involuntarily want to appropriate a recipe or copy a recipe that they did not create themselves. The question of the protection of culinary works and cooking recipes is more than ever a topical subject to which it is not easy to find an answer.
Since 2010, the "gastronomic meal of the French" has been listed as an Intangible Cultural Heritage of Humanity by UNESCO. If this is a real recognition of the French gastronomic heritage, it would seem that from a legislative point of view, this is not yet the case.
If under French law, a creation can be protected by copyright if it is original, the case law considers that cooking recipes cannot benefit from this protection. Indeed, it is accepted that even if the recipe is written in an original way, the author will be able to benefit from protection on the writing but not on the content itself.
Great chefs are often associated with a work that, over time, becomes their signature. It can be frustrating, after a few months or years of work, to see your work reproduced publicly without mentioning your own identity and without having given the agreement. With the evolution of digital, the web and social networks have taken advantage of this scourge for the sharing and dissemination of cooking recipes and gastronomic content.
So how can you protect your cooking recipe? What are the remedies for a cook who would see his cooking recipe used by someone other than himself? Pierre de Roquefeuil, lawyer specializing in intellectual property law in Paris, gives you all the information.
The protection of cooking recipes: not provided for by French law? the intellectual property lawyer answers you
The Intellectual Property Code provides three characteristics to apply to the protection of a work: the work must be a work of the mind, it must have a material reality and must bear the imprint of the personality of its author. Thus, this allows him to recognize a character of originality specific to his creator.
Jurisprudence has long considered that cooking recipes cannot benefit from copyright protection. In fact, in 1997, the Tribunal de Grande Instance of Paris also considered that “although cooking recipes can be protected in their literary expression, they do not in themselves constitute a work of the mind”.
Article L. 611-10 of the Intellectual Property Code withdraws the possibility of patenting for the sole benefit of aesthetics and defines patentability by proof of a novel character and an inventive step. As a result, the patent could only be granted if it is proved that the technical invention leads to a resolution of a solution to a technical problem. In the context of a cooking recipe, this is not the case.
Consequently, a recipe written in an original way, allows its author to be able to benefit from protection on the writing. As a result, the author of the recipe may oppose the publication of his recipe word for word without having given his agreement or without mentioning his own creation. However, the creator of the cooking recipe will not be able to benefit from the same protection on the content of his recipe.
At present, it is therefore very difficult to set up protections for cooking recipes or culinary creations. The Intellectual Property Code does not provide specific protections for a culinary creation.
Nevertheless, some actions can be considered for the protection of its cooking recipes. Pierre de Roquefeuil, a lawyer specializing in intellectual property law in Paris, reveals some advice to put in place to protect your cooking recipes or your culinary works in your own way.
Protecting your cooking recipe: the lawyer specializing in intellectual property gives you some advice
The most effective solution to keep a cooking recipe is to keep it secret, as for a know-how. By keeping his recipe secret and not distributing it in a book or on a blog, it will have little chance of being reproduced.
If the recipe is published, it may only be partial, and the subtleties of the know-how, the ingredients, remain secret… a question of commercial strategy. Also, it is strongly recommended that a cooking recipe creator note certain mentions such as "All rights reserved" or "Prohibited from publication". These mentions can make it possible to dissuade the reproduction of its own receipts.
Would you like to be guided in the protection of your cooking recipes? Do you suspect an individual of having taken over your cooking recipe by distributing it in his name? The Roquefeuil firm specializing in intellectual property law in Paris, advises you and supports you in defending your interests.
Register a trademark to protect your cooking recipe
Transforming your cooking recipe into a registered trademark allows you to obtain protection. While the recipe itself may not be exclusive, the name you choose for it may be. The brand name helps consumers to be able to recognize a company or a model. The filing of a trademark thus constitutes a commercial advantage and security for the company.
By associating a title with your cooking recipe and filing a trademark with the INPI (National Institute of Intellectual Property), you will have a monopoly on the name of the recipe. This is particularly the case of a famous yogurt drink or a famous chocolate egg for children. Their recipes still remain a mystery today. This is called “business secrecy”. Nevertheless, it should be remembered that the recipe could be reproduced and used under another name, since this protection only applies to the trade name.
In the same order of ideas, we can endeavor to resort to the right of designations of origin and protected indications.
Protect your cooking recipe with a clause in the employment contract
There is also another protection for a chef: the non-competition clause in the employment contract of his employees. In the context of a company where employees have access to cooking recipes, these must, before being disclosed, be protected in the employment contract. The insertion of a non-competition clause will prohibit an employee from reproducing this recipe in a competing company. However, this non-competition clause is valid only by providing financial compensation to the employee, and a proportionate limitation in duration and space.
The employer can also insert a confidentiality clause in an employment contract. This will prohibit the employee from disclosing information such as ingredients, quantity, proportions, etc.).
Cooking recipe: protect it in its appearance
For a cook or a pastry chef, a cooking recipe can be protected through the appearance of the resulting dish. Indeed, although the content cannot be protected as a whole, the design of a culinary creation or even the way of arriving at a precise dressing can be protected in the same way as a work.
However, it should be specified that the law on designs and models allows protection under these conditions "the appearance of a product, or part of a product, characterized in particular by its lines, its contours, its colors, its shape, texture or materials. These characteristics may be those of the product itself or of its ornamentation. Is regarded as a product any industrial or artisanal object, in particular the parts designed to be assembled in a complex product, the packagings, the presentations, the graphic symbols and the typographical characters, with the exclusion however of the computer programs”.
The starred chef Alain Passard, for example, has registered his “bouquet of roses” pie and its different variations as a model. This work being original and unique to himself, this model deposit therefore protects the reproduction of his “bouquet of roses” pie.
On the other hand, in the event of a conflict between the creator of the model and the alleged infringer, the creator must be able to provide proof that his model fulfills the conditions specific to protection by design law.
Publishing a cooking recipe: copyright protection
A recipe published on a blog, a website or in a book, gives its creator copyright over the writing of it. However, the writing of the recipe must be original and must be able to stand out for a specific literary style.
Would you like advice on how to protect your culinary creations? Do you want to sue a counterfeiter? The Roquefeuil firm specializing in intellectual property law in Paris, helps you see things more clearly and accompanies you throughout the procedure https://roquefeuil.avocat.fr/avocat-specialise-propriete-intellectuelle-paris/
French 
English