Today’s post is written by Heather Powell, Director of Major Accounts and Special Projects at SafeSourcing Inc.
A proprietary process is like grandma’s secret lasagna recipe. Lots of people make lasagna, but nobody does it quite like grandma. In fact, you don’t even like other lasagnas; because grandma’s is so much better that it makes all the others seems cheap and terrible!
You might be currently selling grandma’s lasagna but want to expand your customer base, or you are looking to take the recipe to a manufacture to create your own private label lasagna to be sold by distributors. How do you protect your recipe? How do you maintain ownership of the recipe if you want others to mass produce it?
To be clear, there are a lot of confusing technical terms that need clarification of how to protect your recipe:
Patents: Patents protect new, useful, and non-obvious inventions (ideas!). An invention can be a device, a structure, process, machinery, etc. A patent for a composition of matter, including a food recipe, allows you as a small-business owner sole right to prepare your product for sale to consumers and profit from those sales for a period of years. A United States patent has strict filing requirements, and the approval process can take months to years to complete. You must describe the shape, look and ingredients that go into making your product in great detail. Your product must also meet the “nonobvious” requirement, meaning your recipe must not be easily discernible to a professional with food training or the everyday consumer. A patent for a recipe usually covers either mass market products or those designed to perform specific functions within existing products. In seeking your patent, you must decide how you intend to use your product in the market. For example, if you’re designing a product to increase the shelf-life of existing products, you must name that as your product’s purpose in your patent application. You probably won’t win patent approval if you have no intended use for your product or concrete business plan.1
An inventor’s patent will expire after 20 years, and in any case, require the inventor to publish every step of his or her creation. In essence, filing a patent for a recipe requires the chef to let the cat out of the bag.3
Trademarks: Trademarks protect source identifications, usually for brands, slogans, logos, or designs (sometimes even scents or colors). A trademark protection may extend perpetually.
A trademark allows you as a business owner to protect a word, design, symbol or phrase used in connection with your company’s proprietary products. Many companies large and small choose to trademark brand names for products and business logos to ensure each company’s products and business logos remain easily recognizable to consumers. This helps companies maintain brand recognition over time. You have the right to enforce your trademark in court by suing for damages if another company attempts to use your company’s product symbols or business logo.1
Copyrights: Copyrights protect original textual works and visual or artistic expressions.
Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.2
Trade Secrets: Trade secrets protect valuable secret information like ideas that must be kept confidential. Others to whom they are disclosed to must also keep them confidential. Similar to trademarks, trade secret protection may extend perpetually.
Unlike trademarks, which protect recognizable designs, trade secrets protect information such as formulas, drawings, patterns, customer lists, programs, devices, methods, techniques or processes. A recipe may be either a “formula,” “method,” or “process” and can be legally protected as a trade secret so long as (1) the owner takes reasonable steps to keep the information secret, and (2) some independent economic value is derived from the information.4
How to Keep Your Trade Secret Top Secret?
Treating your signature product as a “trade secret” is the easiest and cheapest way to protect your culinary assets, unlike the legal hoops required in filing a patent or trademark.
- Keep your recipe under lock and key. Make sure only your top team members are in your “circle of trust,” such as an executive chef or manager. Word of caution: not every recipe on your menu can be a trade secret, but only those that have a unique feature that sets it apart from competitors’ offerings, like the recipe behind Thomas’ English Muffins’ “nooks and crannies,” may be a trade secret.
- Quantify the dollar value of your recipe. Keep track of the sales generated specifically by your signature product.
- Make sure the keepers of the recipe actually know it’s a secret. Include a confidentiality agreement in your manager’s employment contract. Also, remind these employees regularly during training and at staff meetings of their legal duty to not disclose your restaurant’s signature recipes.4
In part four of this series, the author will provide the clarification of a confidentiality agreement and non-disclosure agreement. Meanwhile, SafeSourcing can assist you in exploring your procurement solutions for your proprietary product on our “Risk Free” trial program for RFPs and RFQs, please contact a SafeSourcing Customer Service Representative. We have an entire customer services team waiting to assist you today.
We look forward to your comments.