In the second of a series of three articles for Fine Dining Guide, leading London intellectual property lawyers Hansel Henson highlight how, through the innovative use of intellectual property rights, gastronomic creations can be protected.
Protecting the Dishes & Culinary Skills
The kitchens of our great restaurants are creative powerhouses. The fine dining experience in premiere London eateries is at least the cultural equivalent to that of the theatre, opera or art gallery. Indeed, diners expect to be both fed and entertained by the flavours, textures and designs of their dishes. Top chefs produce food with such presentational flair and gastronomic exuberance that it is easy to see why Marco Pierre White said of his favourite dish, Pierre Koffmann’s Pig’s Trotters, “if it had been a painting it would have hung in the Tate”.
As one may be aware, the art in the Tate Modern is protected by copyright laws. But are culinary concoctions similarly protected, so as to prevent the dishes from being reproduced by rival chefs or photographed at the table, or indeed whole menus from being copied? And what’s the position if a chef jumps ship to a rival’s kitchen?
When Jay Rayner reviewed Whitstable gastropub The Sportsman in 2002, he described chef Stephen Harris’ menu as a “pick-and-mix of dishes pinched from the country’s top chefs”, something Harris was perfectly up front about.
Stephen Harris now holds a Michelin star, which implies a more personal signature, and serves some of the most interesting and variously acclaimed food in the country.
On other occasions the “lifting” of ideas is not quite as romantic. In 2006 it was reported that a young British chef working at the restaurant Interlude in Melbourne, Australia had blatantly copied several dishes from cutting-edge American restaurants Alinea and WD-50. He may have got away with it, had the subject of the alleged copying not been so distinctive. One of the dishes allegedly lifted from chef Wylie Dufrense’s WD-50 in New York was what ‘The Age’ newspaper described as “a pureed prawn reformulated into noodles and served with smoked yoghurt, paprika and nori”. Hardly a roast rib of beef. The alleged infringer apologised to the chefs involved and no legal action was taken, perhaps because of the good publicity and, as was pointed out by intellectual property specialists at the time, there is copyright in the expression of an idea, but not in the idea itself.
For an idea, such as a particular dish, to be protected as an artistic work (a type of copyright) there must be a fixed expression of the idea in a material form – be it on canvas, wall or plate. There is no bar preventing a work intended only to have a temporary existence from being protected by copyright. However, the courts have shown a reluctance to grant protection in works deemed ‘too ephemeral’. The 1980s pop icon Adam Ant found this out the hard way, after the design of his facial mask was denied copyright protection as it was applied with easily removable face paint, which few would disagree is a little more permanent than plated food. The dainty dishes served at Michelin-starred restaurants would do well to survive for more than a few minutes! It therefore appears that an assembly of perishable ingredients designed to be consumed immediately, no matter how beautiful, will fail to satisfy the Court’s criteria for copyright protection as artistic works.
In the recent “Star Wars” case, which related to whether or not the helmets worn by Stormtroopers were ‘sculptures’ for the purposes of copyright law, the trial judge noted, encouragingly for purveyors of the gastronomic arts, that the concept of what is a sculpture can go beyond what one might normally find in an art gallery and the fact that the object has some other use does not necessarily disqualify it from being a sculpture, so long as it still has the intrinsic quality of being intended to be enjoyed as a visual thing.
So whilst there is some hope for the protection of very stylised and striking looking dishes in and of themselves, it seems that currently the main obstacle to preventing copying is professional embarrassment!
There is an additional form of protection available to protect the look of dishes, their shape and decoration, which is relatively cheap and much used by the big food manufacturers. Registered design right protection can be used to protect the look of all manner of distinctive food products such as breads, pastries, chocolates and confections. As far as we are aware no restaurateur in the UK is making use of this form of protection. Creativity in the kitchen needs to be matched by business creativity.
Recipes and Menus
Chef Jeremy Lee of London’s Quo Vadis, has been serving ‘St Emilion au Chocolat’ as a pudding for over a decade. Lee is the first to admit that it is made from an Elizabeth David recipe “unchanged and untampered with”. There is little doubt that a chef’s written recipe – the list of ingredients with instructions for preparing a particular dish – can be protected by copyright as a “literary work” as this is a fixed form unlike dishes.
However, this gives a thin layer of protection, extending only to the words of the recipe copied: one chef may still use the recipe of another to make a dish.
What about the list of dishes on a menu? In 2011 it was reported that Formula One driver Jenson Button’s now defunct restaurant, Victus, was accused of menu-copying by the head chef of popular chain Leon. It appears that no legal action was taken, possibly because the alleged copying seemed to relate to menu headings and formatting, rather than specific dishes. In theory a restaurant’s menu could be protected by copyright but it is usually going to be very difficult to show a substantial part of the original menu has been copied.
If a top chef put a jokey reference to a McDonald’s Big Mac on his menu then he might expect to get an angry letter from the fast food chain’s lawyers. But it is seen as perfectly acceptable in the trade for other leading chefs to have on their menus “Pig’s Trotter Pierre Koffmann”.
Part of the reason for this is, as we saw in the first article in this series, that only a minority of top chefs and restaurants protect their brand. There is no trade mark protection for “Pierre Koffmann” for example.
Not everyone is so laid-back, however, with the likes of Heston Blumenthal showing foresight with trade mark protection. Amongst his growing portfolio is a registration for ‘HESTON BLUMENTHAL’S TRIPLE COOKED CHIPS’.
Whilst this trade mark could not be used to stop others from serving ‘triple cooked chips’, attempts to further associate the dish with Mr Blumenthal could be met with an action for trade mark infringement. Mr Blumenthal is also of course also free to license the use of this trade mark to third parties (for example supermarkets, or other restaurants).
Enter a restaurant in some states of the USA and at the front door you are likely to see a sign telling diners that concealed firearms are not allowed in the premises. Oddly, they never tell you whether an unconcealed weapon is OK!
It is important to remember that every diner at a restaurant is given permission to enter the restaurateur’s premises. Restaurateurs have always set rules whether it be to require standards of dress or prohibiting wild behaviour.
Equally, restaurateurs can prohibit photography or photography of a certain type (such as for commercial purposes or with certain size cameras). However, it is important that any such rules are drawn to the attention of diners at the front door, before they have started ordering any food. We wonder how long it will be before a restaurateur follows the example of sports stadium and theatre owners in imposing a condition of entry that the ownership of the copyright in any photographs taken on the premises shall automatically be transferred to the restaurant.
Michelin starred New York chef and restaurateur David Bouley has an altogether smarter way of stopping photography in the dining room – the offending snapper is reportedly ushered into the kitchen to take his shots!
The Technologically Inventive
Patents represent a good option for high-end, ground-breaking kitchens protecting the hard work that goes on in their development labs. The American ‘molecular gastronomer’ Homaro Cantu of Moto restaurant fame has recently made patent applications covering dining implements, cookware and food printing technologies.
Chefs may consider using patents to protect the processes that go into producing dishes like Ferran Adria’s spherical olive, Grant Achatz’s edible balloon or Heston Blumenthal’s “Mad Hatter’s Tea Party” (left).
New products and processes that are not an obvious progression from what has been done before can be protected by patents. Thus, cooking technology of the culinary vanguard are potentially patentable, and patents have been used to protect such things as the Vienetta ice cream, by describing in great scientific detail the construction of the dish. Whilst this particular patent expired around a decade ago, its owner Unilever has registered many other patents protecting concepts developed in its ice cream laboratories.
Keeping it a Secret
Can restaurateurs stop chefs learning recipes and techniques and then using them at new ventures? As we’ve already seen the recipes themselves are not protected, but what’s to stop an ambitious young chef taking knowledge learnt in one kitchen elsewhere?
And even where things are kept secret, enforcement can be problematic. A former chef of the Reggae Reggae Sauce brand brought an action for a breach of contract and a breach of confidence against Levi Roots. The chef alleged that he had revealed the list of ingredients which make up the now-famed Reggae Reggae Sauce to Mr Roots in confidence and that he had been cut out of a valid contract to launch the sauce together. The chef’s action for breach of contract completely failed because, in the absence of a written agreement, the judge could not rely on the evidence of either party. Similarly, the action for breach of confidence failed because the chef could not demonstrate to the judge that the situation in which he allegedly revealed the ingredients to Mr Roots was one in which there was an obligation to keep them confidential.
Such situations demonstrate the value of confidentiality agreements and non-compete clauses being included in staff employment contracts and perhaps even agreements with suppliers. These agreements can prevent chefs and restaurateurs from having to fall back on less certain areas of intellectual property law in the event of problems arising over the appropriation of techniques, ideas or brand elements by ex-employees or collaborators.
It is commonplace in many industry sectors for employees to sign up to strict obligations prohibiting them from disclosing or using sensitive information about their employers and their products to competitors and the general public.
But, a balance always has to be struck. Many junior kitchen workers see their work as a trade-off between the long hours and poor pay in order to be paid in another commodity – knowledge. It would be interesting to see the effect on applications for stagiaire positions if the young chefs were restricted as to how they could apply the skills and knowledge they had garnered over long nights behind the stove!
Each and every fine dining restaurant has its own qualities that mark it out. Careful consideration of what makes a restaurant unique can help in protecting the restaurateur’s investment without spoiling its ambiance.
Should you have any concerns of feel an opportunity is in your midst then please contact David Hansel of Intellectual Property Lawyers Hansel Henson Limited. David may be contacted via www.hanselhenson.com
© 2014 Hansel Henson Limited. All rights reserved. HANSEL HENSON is a registered trade mark of Hansel Henson Limited. The rights of other trade mark holders named in this article are acknowledged.
Whilst every reasonable effort has been made to ensure the accuracy of this educational article please let us know of any errors or omissions. Please also let us know if you are the owner of the copyright in any of the imagery appearing in this article and would like us to remove it.
 Jay Rayner’s review still appears on the Sportsman’s website http://www.thesportsmanseasalter.co.uk/pdfs/observer-article.pdf