Exploring IPR for Appetite
- Thursday October 12th, 2017
- Posted by: cipam admin
- Category: CIPAM,
Food is not only a means for survival, but in most cases it is also a major profitmaking medium for food connoisseurs. Food blogging has become one of the topmost ‘write-to-earn’ vocation, spread worldwide. Competitions like Master Chef, Top Chef, Food Food, etc. involve cooking as well as dish presentation.
Chefs, Restaurateurs and TV/Film Celebrities have propelled successful culinary careers and are now at par with film and television celebrities, so much so that Julia Child, Martha Stewart, Gordon Ramsay, Vikas Khanna, Tarla Dalal, Sanjeev Kapoor, etc. are some of the world-renowned culinary experts that have become common household names.
IPR and the Food Industry
A property generated by a person using his/ her mind and intellect is called Intellectual Property and the rights over this property given to the individual are termed as Intellectual Property Rights (IPR) such as inventions; literary and artistic works; designs; and symbols, names and images used commercially.
The creativity involved in the food industry pertains to curating the recipes, designing food, menus and recipes by way of ‘artistic representation’ and the innovation part involves ingredients or concoctions. Certain chefs also prepare ‘signature/ trademark dishes’ that are associated with a particular food outlet/ restaurant. They also give out detailed recipes of the food prepared by them on the show or from their published books. Recipes contain details of ingredients and the methodology used for preparing a certain type of food. Since food is prepared in so many different ways, the ingredients used to make a certain kind of food will invariably be repeated/ altered. The method can also be altered or substituted with other ingredients, but the basic method for preparation would remain the same.
How are recipes protected?
While recipes in themselves are not capable of being protected under IPR laws, the way they have been presented may attract certain types of IPR such as copyright. Copyright is a type of protection that is provided for original works of authorship. It provides the author or the creator, to use the work as per his/his wishes, whether it is to sell it, publish it or to reproduce it. A copyright may exist for, any original literary, dramatic, musical and artistic works, cinematographic films and sound recordings. Therefore, the question that arises is whether or not food recipes are entitled to copyright protection, especially where food recipe videos are concerned.
For example, the way a person showcases his idea or innovation, is something that requires creativity. They may make a video of the way they are preparing the food, or they may author a cookbook for the same; both of which depend on the creator. If the method in which the recipe is presented is unique and new, then the method, i.e., the video or the cookbook is eligible for copyright protection. But ingredients and the way food is to be prepared cannot be copyrighted. One of the main prerequisites, for getting IPR protection for any ‘property’ created by the human mind, is that the property needs to be in a tangible form. Furthermore, it is pertinent to note that ingredients can be put to use only in certain ways and it is not possible to use the same ingredient in a different form. They do not contain the “creative” component, essential for an item to have, to be able to avail IPR protection, in particular copyright.
The Sugar Hero Case
In a recent intriguing U.S. case,1 the plaintiff, is running the website ‘Sugar Hero’, which is the plaintiff’s primary source of revenue and contains innovative, self-created recipes in ingenious ways as well as includes videos and pictures. It is widely popular with mass viewership and positive feedback, competing at par with bigger players in this market. The website consists of various videos and original recipes for desserts, one of them in particular known as, ‘snow globe cupcakes’. This video gave step by step demonstration for making the cupcakes and went viral on social media platforms in a very short span of time. However, in a few weeks’ time, it was brought to the plaintiff’s attention that a very similar video was posted by the defendant on their Facebook page. After contacting the defendant to take down the video and requesting them to credit the ‘source’ failed, the plaintiff brought a copyright infringement suit against the defendant.
As per the U.S. Copyright law, copyright protection envisages “original works of authorship that are fixed in a tangible form of expression”.2 The Court ruled that, although the recipe itself was not capable of being protected under copyright law, the way in which the recipe had been presented, i.e., the video, was an original piece of work and a considerable effort had been put into making the video look unique and new. The colours used, the method of making the video were all original and hence could be protected under copyright law. Similarly, if the plaintiff would have published a cookbook and it were to be copied exactly, with the same designs and colour combinations and schemes, then the cookbook would have been protected under copyright law too. The primary principle of copyright law is that the expression of the idea only, is protectable.
Intellectual property rights are still evolving in India and it can be deduced that, while recipes themselves cannot be protected, the way they are presented, is capable of being protected. Cookbooks and food blogs that use unique designs fall under the definition of literary or artistic work, even if they do not contain any literary material. If drawings, photos and tables included in a cook book are also unique, then they shall be protected under copyright. Similarly, food videos employ visual and sound recordings of how a recipe is to be prepared. And hence, they too are copyright protectable.
- Zee Khana Khazana3
- Khana Khazana is a famous cookery show, aired on ZEE channel.
- Several food bloggers claimed that the channel had lifted pictures of their food and used them in their show.
- The food bloggers did not get any credits, nor profits and demanded that the channel take down the pictures.
- The channel offered an apology to the bloggers and took down a few of the pictures, and this can be inferred as a blatant copyright infringement case.
- Tunday Kababi 4
- Tunday Kababi is a chain of restaurants that specialize in making Galauti kababs.
- They are extremely popular and their secret recipe was patented in the year 2005, whereas the name “Tunday” was patented in the year 1995.5
- Several fake Tunday Kababi restaurants had mushroomed all over the city of Lucknow, which was bringing down the name of the real owners.
- The case was fought between the grandson of Haji Muraad Ali, Usman, and Usman’s cousin, Mohd. Muslim, on the grounds that their respective chains of restaurants were the original Tunday Kababi restaurants and that the other should not be allowed to use the name as it harms the reputation of the original restaurateurs.6
- The Court ruled in favour of Usman who further went on to file a writ petition at the Delhi High Court, to stop people from using the name of his grandfather’s restaurant, in the year 2014.
IPR laws in India have come a long way; from providing protection to basic intellectual properties such as trademarks, designs, etc., to providing protection to the way ideas are presented in various unique forms such as cookbooks or videos now.
1Elizabeth Labau vs Television Food Network, Case No.: 2:17-cv-04077, U.S. District Court, Cal.
2§ 102, Title 17, U.S. Code.
3Case of Copyright Infringement by Khana Khazana, Harini Prakash, Social Samosa, March 30, 2012, (Last viewed on: June 30, 2017, 02:45 p.m., Last accessed from: https://www.socialsamosa.com/2012/03/case-of-copyright-infringement-by-zee-khana-khazana/.)
4Tunday Kababi Pvt. Ltd. & Ors. Vs. Avadh Food Point & Anr., CS(OS) 1899/2014, Del. High Court. See, Lexis Nexis India, Tunday Kababi …. Food Point, LNIND 2014 DEL 5093.Application Nos., 1474534 & 1852621, under Class 42, obtained from IP India website: http://ipindiaonline.gov.in/eregister/eregister.aspx.
5Our name and recipe was patented in 1995, Itishree Misral, Times of India, Jan. 7, 2015, (Last viewed on: June 30, 2017, 10:30 p.m., Last accessed from: http://timesofindia.indiatimes.com/city/lucknow/Our-name-and-recipe-was-patented-in-1995/articleshow/45789233.cms); Also see, Our name and recipe was patented in 1995, Lucknow First, January 11, 2015, (Last viewed on: June 30, 2017, 11:30 p.m., Last accessed from: http://www.lucknowfirst.in/?p=1722).
6Id, at 3.