By Jean-Philippe Mikus

Simply including a name in a menu does not, however, guarantee it will be recognized as a trademark. First of all, a name that merely describes a dish’s ingredients (e.g. spaghetti with wild mushrooms) has little chance of winning over the courts’ sympathy and being granted protection, since a minimal degree of imagination is required.

The name has to distinguish the dish in the industry. If the name is commonly used among multiple restaurateurs in a given region—or, worse yet, has become a common culinary expression—its chances of being successfully recognized as a valid trademark are low. It is difficult to imagine a chef today winning exclusive rights to such names as ‘crème brulée’ or ‘Beef Wellington.’

A trademark that manages to avoid such problems could even qualify for trademark registration. Obviously, only a signature dish that remains on a restaurant’s menu for a relatively long time would justify such treatment. However, even without registration, it is possible to demonstrate the reputation acquired in association with a trademark and seek judicial assistance in protecting it. If, however, no effort is made to protect a dish’s name, and it then spreads like wildfire among competitors, it would be more difficult to take action.

Obviously, franchisors face an important business decision: either claim exclusivity or use the media to informally assert itself as the innovator of a dish that has achieved wide success among the population. The latter approach, however, can produce mixed results, as seen in the debates over the true origin of poutine.

Read the full article: Dishing It Out:  Does intellectual property have a place in the kitchen?

By Jean-Philippe Mikus

Certain developments across the pond can help put this in perspective. In France and the Netherlands, debates are raging over whether the scent of a perfume can be protected by copyright, even if the actual formula used was not reproduced. To date, the Supreme Court of the Netherlands has held scent can be protected by copyright, while its French counterpart, the Cour de Cassation, has denied such protection. The fact the work was only perceptible by scent, and otherwise invisible, did not prevent the Dutch court from recognizing its protected status.

The question then is will protection of a particular scent, taste or arrangement of a dish eventually be recognized in Canada as well? If this particular dispute goes any further, it will be an excellent opportunity to discuss these questions. The composition of the two parties’ recipes will also have to be examined to see if they truly were copied, or whether this is simply a case of common inspiration. At this point, not enough information has been made public to answer these questions.

The accuser in this case appears to be relying on trademarks, claiming the illegal appropriation of the name of certain dishes as they appear on the menu. While food products have long been the objects of trademark protection, such protection has usually been reserved for pre-packaged products sold for consumption at home, products whose trademark appears on the label or packaging. In this dispute, however, there is no visible packaging or label, as the dishes are served at the table as part of the operation of the restaurant. This does not necessarily mean trademark rights will be impossible to obtain, however. It is conceivable the dishes could be protected as aspects of the service of operating the restaurant, seeing as the name is somewhat associated with this service though its appearance on the menu.

Read the full article: Dishing It Out:  Does intellectual property have a place in the kitchen?

By Jean-Philippe Mikus

Increasing competition between restaurants and food chains have forced key players to delve deeper into intellectual property law to protect their interests. Several types of intellectual property rights exist. Most notable among them are copyrights, which protect human expression and are best known for their application to various forms of media (e.g. publishing, cinema, television, etc.). Trademarks help prevent consumer confusion over a product’s origins and protect the commercial reputation of a business, while patents protect the fruit of human inventiveness (e.g. an invention or drug), insofar as it can be put to use in industry. Of these, copyrights and trademarks are more easily accessible; unlike patents, they do not require registration or issuance by a government authority (such as the Canadian Intellectual Property Office).

Under copyright law, the accuser in the case described above may attempt to claim a dish’s composition or presentation is an artistic work, or the text of a recipe is a literary work. Despite the names given to these types of works, they need not be the result of any particular artistic impulse; the law simply requires a person use his or her judgment and abilities to create them.

In the culinary world, it is commonplace for recipes to be copied and recopied from one generation to the next, but there are cases where a certain degree of originality may be attained. However, certain Canadian legal decisions suggest protection cannot extend to methods and systems, but only to the manner in which they are expressed in a fixed manner.

Read the full article: Dishing It Out:  Does intellectual property have a place in the kitchen?