A question of taste

Related tags Coca-cola

Safeguarding the secrets behind a 'magic' recipe means playing your cards close to your chest and trusting no-one, says Michael Luckman

Behind every taste is a recipe a set of ingredients and production conditions guaranteeing consistent quality and taste. There are four possibilities for protecting taste and recipes: patents, copyright, trade marks and, most importantly, laws on confidence.

Regulation may require the disclosure of certain ingredients, but there is no general requirement to disclose how you make a product. As a result, certain products claim ‘secret’ aspects to their make-up, for example, Coca-Cola or KFC. In principle, so long as it is secret, no one can make use of it. However, there are a few rules worth bearing in mind.

First, claiming a recipe is confidential does not make it so. Recipes and manufacturing techniques will not be protected without that ‘magic’ element (the bit about Coca Cola that Pepsi doesn’t know). Furthermore, recipes ascertainable by reverse analysis of purchased items will also not be protected.

Recipes must also be treated as confidential. This means locked safes and masked ingredients. If your competitor hired a member of your staff, would they know what goes into the mix?

Remember, low-grade employees do not owe you obligations on leaving. If they know it, your secreis out. Senior staff may owe you greater loyalty but only genuine trade secrets will be protectable. Similarly, third parties should only be given access on strict confidentiality terms.

The vital lesson then is to treat a confidential recipe with kid gloves. Once it becomes public at any level, confidentiality is lost.

Patents protect technological inventions and are rare in food manufacturing, relating mainly to production processes. However, protection is of finite life and comes at a price a patent is published so that others may develop, but not copy it.

People who copy written recipes infringe that copyright. However, copyright only protects the way an idea has been expressed. If the same recipe is expressed differently, it will not infringe copyright.

Theoretically, it is possible to register taste as a trade mark if it is significantly descriptive. However, there are practical difficulties in generating a permanent benchmark by which this mark may be appropriately identified and infringement judged.

In summary, where taste is a key and distinctive feature of your offering, you can protect it. But the most important thing is ensuring confidentiality of the ‘magic’ and putting in place the proper safeguards to keep it to yourself. FM

Michael Luckman is a partner in UK law firm Wragge and Co LLP.

Related topics Legal