Protecting recipes using intellectual property law
Very recently, the Minister for Small and Medium-sized Enterprises in France, Alain Griset, launched the “Year of Gastronomy” label. The aim of this project is to support the whole catering industry value chain, which has been severely affected by the health crisis, but also to promote French culinary know-how. The candidates selected by the committee chaired by Guillaume Gomez, former head chef of the Élysée Palace and personal representative of the President of the Republic in the service of French Gastronomy and Food, received financial support from the government.
The implementation of this project is an opportunity to revisit the protection of recipes using intellectual property law. The French gastronomy sector has significant international appeal, but the recipes that make this appeal possible are not properly protected by law.
No copyright protection for recipes
Our legislative system offers protection on the basis of copyright to the owner of a work of the mind as long as it is original and bears the imprint of his or her personality.
Indeed, Article L111-1 of the French Intellectual Property Code stipulates that “The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons”,
In theory, a recipe should be able to benefit from this protection. However, French and European case law has long refused to grant copyright protection to recipes. In a judgment dated 30 September 1997, the Tribunal de Grande Instance de Paris considered that “although recipes may be protected in their literary expression, they do not in themselves constitute a work of the mind. ” It is therefore possible to obtain protection for the text of the recipe if it is original, for example for a cookery book, but not for the recipe as such.
More recently, the Court of Justice of the European Union (CJEU), in a “Levola” judgment, dated 13 November 2018, objected to a flavour being protected by copyright, as it does not meet the conditions of accuracy and objectivity required by copyright.
If copyright is powerless to protect a recipe, there is business secrecy, provided by law to protect know-how.
Protection of recipes through business secrecy
A recipe can be considered as know-how. Therefore, the legislative mechanism relating to trade secrets could prove to be a useful tool. Article L511-1 of the French Commercial Code, which governs business secrecy, is intended to apply to the protection of recipes. However, this legal protection may seem restrictive, as it prevents the recipe from being made public. However, the great chefs have their recipes made by their teams and often publish their recipes in books. It therefore seems illusory to keep them confidential and to rely on business secrecy to protect them.
If business secrecy does not appear to be adequate for the legal protection of recipes either, there are other alternatives based on industrial property.
Alternative protection on the basis of industrial property
Some French chefs have decided to register their names as trademarks to overcome the difficulties of protecting their recipes. For example, the pastry chef Gaston Lenôtre, Alain Ducasse or the chocolate maker Pierre Hermé have a trademark in their name.
It is also possible to protect the name of the creation directly as a trademark, if it is distinctive. This is particularly the case with the Praluline trademark for the crushed praline brioche of the Pralus company.
The Michelin-starred chef Alain Passard has protection under design law for his “rose bouquet tart”. Culinary creations can benefit from this protection if they meet the conditions of novelty and distinctiveness laid down by the law.
Article L511-2 of the French Intellectual Property Code stipulates that “only a design or model that is new and has its own character can be protected.”
This lack of clear and precise intellectual property protection for recipes, even though France is the country of gastronomy, has led the legislator to consider the creation of a specific intellectual property title for culinary creations.
Plan to implement a certificate of culinary creation
On 30 April 2019, the National Assembly, brought forward a bill on the protection of recipes and culinary creations. This bill aimed in particular to create a new intellectual property title called a “certificate of culinary creation”, issued by the “National Institute of Culinary Creation”, and which would be governed by Articles 145-1 et seq. of the Heritage Code.
The legal regime planned for this new intellectual property title is in fact a hybrid regime made up of already existing intellectual property rights, such as copyright, patent law and design law.
Any culinary creation would be protected for a period of 20 years in return for the payment of an annual licence fee to maintain the right in force (new Article L145-6 of the Heritage Code). This culinary creation must involve a creative activity that does not follow in an “obvious manner from the state of the art in culinary arts for the skilled person” (new Article L145-10 of the Heritage Code). Secondly, the culinary creation must be new and have its own taste, “if its taste qualities give an overall impression and not one that has already been tasted” (new Article L145-9 of the Heritage Code).
Finally, the culinary creator will benefit from exploitation rights on his or her creation, as well as moral rights such as the right of disclosure, the right to a name and the right to respect for his or her culinary creation (new Article L145-20 and Article L145-21 of the Heritage Code).
We can therefore see that the certificate of culinary creation is an intellectual property title borrowing its legal regime mainly from patent law and copyright. For the time being, the bill is being studied by the Commission for Cultural Affairs and Education. There is no doubt that this new title will be a real boon for the French gastronomy sector, by finally offering secure protection to the creators of recipes and culinary creations.
For more information on the protection of recipes and culinary creations by intellectual property law, we invite you to consult the following article: “Intellectual property in the service of cuisine: http://alatis.eu/actualites/propriete-intellectuelle-cuisine/”
Our counsels and lawyers are at your disposal to assist you in your efforts. You can contact us at the following address: firstname.lastname@example.org
 European Union word mark Gaston Lenôtre (no.007355167), registered on 29/10/2008 in classes 29, 30, 33 and 43 in the name of Lenôtre SA
 European Union word mark Alain Ducasse (no.000865717), registered on 26/06/1998 in classes 29, 30 and 42 on behalf of DUCASSE Développement SA
 French word mark (n°3279352), registered on 12/03/2004, in classes 30, 32 and 43 in the name of PH, a simplified company with shares
 European Union word mark Praluline (no.001610666), registered on 14/04/2000 in classes 29, 30, 32 and 33 in the name of Pralus
 European Union model “rose bouquet tart” (no.080363), registered on 05/05/2008 in the name of Alain Passard
 Bill no.1890 on the protection of recipes and culinary creations: https://www.assemblee-nationale.fr/dyn/15/textes/l15b1890_proposition-loi#