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Notes from Our January Meeting
Fourteen local food professionals attended our latest meeting on Sunday, January 24. The meeting was hosted by Catherine Schon of Sassafras Catering in SE Portland. Everyone brought a dish to share at the potluck before the meeting (yum!) and each contributor to the potluck used their talents, skills, knowledge, and experience to create their individual dishes.
Protecting these unique talents, skills, knowledge, and experience from being copied or stolen by others was the topic of the evening’s discussion. This month’s guest speakers were Ann W. Glazer, a partner with the Stoel Rives law firm in downtown Portland who specializes in intellectual-property rights, and Tony Kullen, an independent attorney who provides legal and business-advisory services to start-ups and small businesses.
Recipes are a difficult thing to copyright because so many chefs at different restaurants cook similar dishes, using similar ingredients, said Glazer. Nevertheless, she pointed out several steps entrepreneurs can take to protect their unique creations:
Domain names: Register the domain name for your restaurant or business.
Patents: Patents are expensive and somewhat difficult to get. You can’t patent ideas. For example, you couldn’t obtain a patent on Chicken Pot Pie, since it’s already been done before, and making this recipe is not a unique process. Nevertheless, you could patent a new cooking utensil that you have invented, or a new way of doing something that is unique. For example, Glaser pointed out that George Foreman [probably] owns the patent on his “George Foreman Grill.”
Copyrights: Even though you can’t copyright a recipe (which is basically just a list of ingredient and a set of instructions on how to prepare them) you can a story or narrative that includes the recipe. For example, if you published a recipe that included a story of where the recipe came from and/or a personal anecdote about how you learned to cook that way, and who taught you, etc., you could copyright the entire story. You can also copyright a collection of recipes, if you publish online or in the form of a cookbook. To copyright something, simply put the copyright symbol (the letter C inside of a circle), the year, and your name or name of your business (example: © 2010 Acme Restaurant). Please note that this won’t prevent someone else from copying your recipe and serving it in their restaurant; however, it would signal to them that they shouldn’t copy your story and publish it as their own creation, or copy your collection of recipes and publish it as their own.
Trademarks: If you develop a unique product or brand name, you can register it at a trademark (denoted by the symbol TM) with the U.S. Trademark Office. Although not as expensive as getting a patent, getting a trademark does cost money.
Trade secrets: The most famous example of a trade secret is the recipe for Coca-Cola. As a restaurateur, you could (if you wish) protect your recipes and cooking methods as trade secrets–if you can prove you made a reasonable effort to keep them secret, says Kullen. For example:
- Don’t share your recipes with anyone.
- Make it a written policy to keep visitors out of your kitchen.
- Keep your recipe book under lock and key at all times when not in use.
- Write “Trade Secret: Do Not Copy” on the cover of your recipe book and at the top of every recipe.
- Require all of your employees sign detailed Non-disclosure Agreements before they start working for you.
One the other hand, some food professionals don’t bother trying to keep anything secret. They find they gain more exposure and free publicity by sharing their recipes freely, online, in print, or even by making individual recipe cards available at farmer’s markets and other retail outlets.
Non-disclosure agreements: A non-disclosure agreement is a written agreement between your and your employee, stating that if (when) they leave your employ, they agree to not take any recipes or cooking methods with them that they learn while working for you. You don’t want your former employees taking all your best recipes and cooking methods with them when they leave and using them in another restaurant, or using them to start their own restaurant that will compete directly with yours.
Of course, enforcing all of these provisions is easier said than done. “Lawsuits are costly and uncertain,” Glazer says. “It’s much easier to shame someone else into not stealing your recipes and using them as your own than is to sue them and win. A lot of this boils down to ethics. When you’re copying or borrowing someone else’s recipe for your own use, think of how you would want to be treated. You’d probably want some credit for it.”
“The best defense of your restaurant’s name and reputation is your own skills, experience, and the care you take in preparing and serving your food,” she adds.
In other words, if you prepare and serve your food with love and care and build a unique and favorable reputation for yourself and your business, someone else may be able to copy your recipes, but they won’t be able to compete with you!
Sample Non-Disclosure Agreement: http://www.nolo.com/products/noncompete-agreement-PR112.html
U.S. Copyright Office website: A wealth of information, forms, and instructions for copyright registration: http://www.copyright.gov/
U.S. Patent & Trademark Office website: http://www.uspto.gov/
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