A couple of years ago a successful German chef with a restaurant in Rome called for protection of recipes. And was laughed out. But consider this: over the last ten years cooking has evolved into big business. Television chefs like Nigella Lawson, Jamie Oliver, Claus Meyer, Tim Mälzer, Ernst Kirchsteiger, Gordon Ramsay, Alain Ducasse and Tina Nordström have all become familiar household names – internationally for some or nationally for others. For some television networks and publishers they are a huge export.
So considering this, didn’t the German chef have a point? One of the purposes of IP is to encourage and facilitate development for the benefit of society and economy, and to protect human creativity.
In May this year in New York City local patissier Dominique Ansel put his ingenuity to work and struck a chord with the American sweet tooth: he invented the Cronut, a cross between a croissant and a doughnut. Amazingly, it has quickly become the stuff of legends: the things, of which the patisserie can only produce 200 a day as the process is quite laborious, sells out by 8 in the morning and people are queuing from 6. Black market prices (!) are up to $80 a piece.
Mr Ansel has applied for trademark registration for the name CRONUT, which has caused quite a few raised eyebrows. Clearly Mr Ansel is more than just a baker. He has struck gold and is thinking ahead by protecting the trade name. Unfortunately, outlook is that New York will see all sorts of knock-offs of the Cronut and all that is left will be the name. Already, Dunkin Donuts have tried a knock-off in South Korea.
As IP-advisors we always stress that there is no legal protection for concepts. But should that really be set in stone? Chefs can rely on trade secrets or copyright for protection but really this is not a satisfactory protection. Copyright protects mainly works of art and creativity. Yes, you can argue that a recipe is a work of art, albeit with a narrow protection but there is more to it than that. I think most will agree that a chef who develops his/her own recipes does invest a lot of skill and labour in it. Then one must also take into consideration the whole universe surrounding this: television shows, books, appearances in shows, cookery lines etc. One can easily argue that such things have become so important both culturally and for society economics that this can be a thing that society should have an obvious interest in protecting through IPR. Here, copyright is just too cumbersome and inflexible. As for Mr Ansel from Manhattan, would it not be fair to let him reap the fruits of his ingenuity – as any inventor? And reward him for the flurry of activity and increase in turnover he has caused in the world of baked-goods?
Things change around us, and some things require mentalities and perspectives to change. Does current IPR reflect current society and how creativity is manifested and commercially exploited? Do we not have a need for protecting things like Dominique Ansel’s Cronut?
Personally, I think IPR should be alive, evolving and above-all reflecting the balance between society’s need for protecting incentive and inventors’/creators’/businesses’ need for protection. Therefore we should not refrain from discussing these matters, nor accept that things seem to be set in stone.
Cookyright? Even Cookieright? Bring it on, I say!
Thorbjørn Swanstrøm, Trademark and Design Attorney, Attorney at Law, Partner