Food for thought: complexities behind protecting food-related intellectual property in India
“Eating is a necessity,” it has been said, “but cooking is an art.” For centuries, art has been created through food. In Roman times, metals and minerals were used to enhance food presentation, while today an Indian restaurant in Dubai – Bombay Borough – sells its Royal Gold Biryani laden with 23-carat edible gold leaves.
When chefs create art with their food and restaurants adopt unique recipe-curation styles that are eventually identified as the original source of such creations, it is only natural to consider how to preserve and protect such valuable works.
Serving food is more than just putting it on a table. How it is plated, theatrics and setting all play a key role. In India, the obvious choice would be to protect food plating as an artistic work under copyright law, but the threshold of originality would be a vast hurdle to overcome in the registration process. Enforcement against an infringement would involve more than just two dishes looking similar. In a field where chefs draw inspiration from other chefs’ ideas, this threshold may be somewhat of a blurred line.
Cases abroad have discussed fixation in a tangible medium as a prerequisite to copyright protection, such as in the United States, where a sculpture carved with perishable food was ineligible for copyright protection (see Kim Seng Company v J&A Importers Inc). In India however, while there may be broader connotations in the absence of a strict definition of a fixed form, enforcement would still be a tough nut to crack. A rights holder would have to establish ‘copying’ where access to original work and substantial reproduction would be significant barriers.
Of course, similar cases to the ITC and its Bukhara brand – in which ex-employees of the iconic restaurant copied trade dress elements after its closure such as look and feel, layout, menu cards and signature dish names – may make things easier.
(Trade) secret ingredients
KFC’s Twitter account only follows 11 accounts: the five spice girls and six people named Herb. This gives people a little teaser about the fact that the iconic secret recipe of KFC Fried Chicken includes five spices and six herbs, although the precise combination or proportion of these ingredients is anybody’s guess. Chefs have historically been highly protective of their signature blends and cooking techniques. Knowledge is passed on from generation to generation in hope that word-of-mouth will survive. Another famous written account which is also heavily guarded is the formula for Coca-Cola.
Currently, no specific law in India outlines protection or enforcement of trade secrets. However, courts have upheld trade secret protection under various statutes and common law actions based on principles of equity. That said, a chef’s hat may, at present, be the best way to protect a secret recipe in India. Keep it all in the head!
Even where there is no IP-specific legislation in the context of food, one can always turn to contractual remedies to protect ideas and brands: carefully drafted contracts and well-structured franchise agreements are just some of the ways in which creative chefs and restaurants can stay ahead of the curve.
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