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- Written by Soazig Thémoin
- Category: NEWS
- Created: 13 August 2019
An "in-between" right, at the crossroads of industrial property and copyright
Currently, cooking recipes do not benefit of any specific legal protection except really specific cases. France, homeland of the greatest Chefs de Cuisine, will be however precursor in this matter in the very near future.
Indeed, a law proposal related to protection of recipes and culinary creations have been presented before the French national assembly last April 30th, 2019.
As a reminder, protection by copyright or design allows, under certain conditions, to protect the aesthetic aspect of culinary creations, but the scope of protection is really limited and does not permit to claim protection on the recipe itself or related taste.
Such a solution has been lately confirmed by the Court of Justice of the European Union (CJEU), which indicated that being unable to be defined as a “work”, a flavour cannot be protected under Copyright Law (CJEU, C-310/17, November 13th, 2018, Levola Hengelo BV). This judgment is analysed in one of our previous articles, available on the following link: https://www.vidon.com/en/news/320-copyright-does-not-protect-taste-sensations-and-experiences-what-protection-for-our-culinary-art.html
Thus, apart from a well-kept secret, which could notably apply as part of a know-how transfer, it is difficult today to effectively protect a recipe.
In light of the above, the French law proposal in question suggests major innovations, mainly creations of:
- a “Foundation for the French Gastronomy”, which shall keep a register listing every recipes of French regional specialities;
- a “National Institute for Certified Culinary Creations”, which shall deliver a “Culinary Creation Certificate”.
This sui generis right, developed to reply to a specific need of catering profession, shall find its place at the crossroads of industrial property rights and copyright.
A Foundation for the French Gastronomy
This foundation shall be created for “promoting knowledge, conservation and enhancement of [French] National Gastronomy”.
In practice, this structure shall keep a register of all French regional specialities’ recipes. The latter shall be protected thanks to a label, which guarantees their authenticity. Then, the Foundation for the French Gastronomy shall deliver a Certificate of Authenticity to restaurants offering dishes whose recipes are well labelled.
The Culinary Creation Certificate
In a second part, the law proposal provides the creation of a Culinary Creation Certificate, which enables from its filing date a 20-year protection to a culinary creation.
This system allows the creator to become the holder of an Intellectual Property Right on his culinary creation. A comprehensive study of the law proposal indicates that this new system originally incorporates elements already existing for IPR and copyright, respectively.
=> the related regime of “employee-creator” currently considered for this new right looks like the patent one:
- If nothing more favorable is provided within the contract of employment, the culinary creations made during the employee’s work shall be the property of the employer, when the position in question includes a creative or research mission.
- Creations made outside the scope of the mission - i.e. out of employee’s duties - but which remain within the field of the employer’s activities, or made thanks to the employer’s technique or data shall belong to the “employee-creator” and to the employer, who shall be considered as co-holders equally.
- Creations made outside of work and unrelated to the employer remain the property of the employee.
=> On the opposite, the right in question shall allow the creator to benefit from the exclusive right of exploitation on the creation as well as moral rights, as stated for “standard” French copyright.
=> As for “standard” IPR (patents, trademarks, designs), a filing before a public organization, and a subsequent registration, are required to obtain a complete protection (cf. infra).
This new IPR would be delivered by a dedicated body: the “National Institute of Certified Culinary Creation”. The latter is responsible for receiving applications for this new right, reviewing, issuing or registering them and monitoring their maintenance.
The exploitation right attached to the certificate is transferable and could be subject to licensing. Such operations shall necessitate written forms, which shall be then notified before the “National Register of Culinary Creations”.
As regards costs, initial fees must be paid at the time of the deposit, then annual fees shall apply (no indication has been made at this stage as regards pricing level of such fees).
The law proposal introduces a process of observation. Indeed, it provides a two-month period to “contest” the certificate application. This “opposition period” shall start from the publication of the certificate application within the new Official Bulletin of Certified Culinary Creations.
The law proposal states that “can be certified the new culinary creations involving a creative activity and demonstrating their own gustatory character”.
These conditions are reminiscent of novelty and inventive activity of the patent but also individual character of the design. Definitions of each of these conditions included within the law proposal are indeed very similar to those already applied in industrial property:
- “A culinary creation is considered as new if it is not included in the state of the culinary art”.
- “The state of the culinary art consists of everything that has been made available to the public before the date of filing of the application for a certificate of culinary creation by a written or oral description, an use or any other way”.
- "A culinary creation is considered as involving a creative activity if, for a person skilled in the art, it does not derive in an obvious way from the state of the culinary art”.
- "A culinary creation is considered as demonstrating an individual gustatory character if its taste qualities give an overall impression of not already tasted".
Even limits and exceptions of protectable creations seem already established, such as:ð public order and good moral requirements (toxicity, narcotic ingredients, etc.); ð non-commercial or experimental uses. Lastly, the law proposal specifies that the extent of protection granted by the Culinary Creation Certificate is determined according to the information it includes, i.e.:ð title; ð type; ð description;ð photography; ð nutritional information; ð texts or drawings related to the recipe; ð arguments developed within the application to support it; ð “search and tasting report” made by the “National Institute of Certified Culinary Creation” as part of the application’s examination. Such elements are therefore initial indications on how comparison shall be made between an earlier Culinary Creation Certificate and a potential counterfeit. However, only further case-law shall be able to bring out a specific comparison method. In this respect, would the latter take inspiration from current comparison methods displayed as part of patent, trademark, design or copyright litigations or develop its own particularity? Besides, it is legitimate to wonder how the taste itself will be analyzed, notably as part of the “search and tasting report” evoked above. Indeed, the main obstacle of this new IPR shall be to determine an efficient technical medium to accurately define and frame a specific taste. A subjective analysis made from a mere examiner’s tasting experience - without such a technical medium - could in fact lead to unbalanced protection and legal uncertainty. Then it has to be noticed that after having disclosed the recipes description, no protection may be claimed on the basis of Know How protection. Anyway, the legal text in question being only a law proposal, Culinary Creation Certificates are at this stage far from being officially in force in France. This proposal will be examined by both houses of the French Parliament before potential adoption and promulgation. Therefore, it could be strongly amended or even rejected. It is only in the following months that we would be able to know if this new intellectual property right enters into force within French legislation or not, and if so under which configurations. Clearly, implementation of such a new protection could have a strong impact on the catering profession, especially on its high-end part. Indeed, if this protection is efficient, it could disrupt its economy, traditional functioning and equilibrium. It could be as well an open door to further protections for other very specific areas where secret on recipes prevails, i.e. wine or tea industries.
The law proposal in question is available on the following link: http://www.assemblee-nationale.fr/dyn/15/dossiers/protection_recettes_culinaires
Do not hesitate to consult us, we are available to assist you for protecting your know-how.
Juriste spécialisé en PI