Intellectual Property Right and Culinary Arts in India
Definition of IPR
Intellectual Property rights are the legal rights that cover the privileges given to the individual who are the owners and inventors of a work and have created something with their intellectual creativity. Areas such as literature, music, invention, food etc. can be granted such rights which can be used in the business practices by them. The exclusive rights must be given to the creator or inventor against any misuse or the use of his/her work without his consent or prior to his information. However in order to maintain the equilibrium, the rights are granted for a limited period of time.[i]
TYPES OF IPR[ii]
1. Patent- It is issued to protect an invention. It gives the holder to prevent anyone from making, using or selling the patented information for fixed period of time.
2. Copyright- A copyright protects the artistic and literary work. The holder has complete rights and control over adaption or reproduction of the work.
3. Trademark- They are the distinctive phrases, words, symbols or signs. They distinguish services or products of one company from the others.
4. Design- A design protects the outward appearance or the visual style of an object. It does not protect unseen design elements of the product.
5. Database- It is similar to copyright. It prevents the copying of significant sections of a database as well as the information.
6. Trade Secret- It is a practice, design, formula, process or a compilation of information. This information is utilized by a company to gain competitive advantage over the others.
Importance of Intellectual Property[iii]
1. Provides incentive to the individual for new creations.
2. Provides due recognition to the creators and inventors.
3. Ensuring the material reward for intellectual property.
4. Ensuring the availability of the original products.
5. For economic growth and advancement in technology sector.
6. To benefit the growth of business in technological field.
Culinary Arts in relation to IPR
Culinary means something which is related to kitchen or cooking[iv]. And the art of preparing and cooking food is known as Culinary Arts. The culinary artists are responsible for skillfully preparing meals that are as pleasing to the palate as to the eye.[v] The history of the culinary arts began in the 1800s when the first culinary school was set up in Boston (Boston Cooking School). Fannie Farmer published the Boston Cooking School Cookbook in 1896 which sets up as the precedent. The American Culinary Federation was founded in 1929 and it became an assemblage of a United States Chef Club.
After World War 2, James Beard began using culinary arts through the television broadcasts in 1946. Yale University provided the New Haven Restaurant Institute in 1946 which was later renamed Culinary Institute of America. It later relocated to Ney York and it added an additional campus in California. The second culinary school was set up in 1973 as College of Culinary Arts in Johnson and Wales University. In 1976, The American Culinary Federation Education Institute began coordinating apprenticeship programs with the assistance of government grant. Since then it has began to grown to be the 7th largest culinary program in the US.[vi]
With the booming of the Indian Hotel industry and the opportunity now reaching the global heights, thus breaking the traditional chain of hotels.[vii] However, there are going to be cases where people would take short cuts illegally which not only infringes the rights of the Intellectual Property but also it could harm the industry itself like. An examples of this would be copying of recipes.
The Indian Culinary Tourism is also increasing day by day with the popularity of regional food cuisines like Punjabi cuisines(Rara Chicken, Chicken Tikkas, Amritsari Fish, Aloo Tikki, Dal Fry etc.) which are getting popular which also has an impact in the UK and Canada which has a lot of people from Punjabi Diasporas[viii]. And if one thing is popular, it could just be copied like grave robbers like it was nothing. And with the rise of Western fast food joints in India, it is possible that the joints will be ripped off and copied without even asking the permission of the owner or informing him/her regarding the case. Joints like McDonalds, KFC, Starbucks etc. are copied just like that(See HFC[ix]).
One such problem is the Parmesan Cheese, where the copycats of the famous Parmesan Cheese are increasing day by day. It has come to a point that it made around $113 billion. And the cheese is still struggling in the outside world despite of being protected by European Union’s IP Laws.[x]
In Starbucks Corporation Vs. Sardarbuksh Coffee & Co. & Ors (2018), the Delhi High Court held that the defendants (Sardarbuksh) to change their names to Sardarji-Bakhsh Coffee & Co for 20 of their stores that are yet to be opened because their former name resembles of the American Company Starbucks.[xi]
Protection of Culinary under Indian Laws[xii]
1. Copyright- The Berne Convention (1886) which protects the copyright in the world stage protects “every production in literary, scientific and artistic form or mode of its expression”, such as literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual and architectural works. Although and recipes were not mentioned in the subject matter. That does not mean it is excluded in the copyright protection[xiii].
In India, copyright of food or recipe is difficult to obtain as it is difficult to prove who is the first and original creator, thus it does not have a copyright protection. But Cookbooks and digital content are protected under The Copyright Act 1957 as they fall under the definitions of Section 2.[xiv]
2. Trademark- Trademark in India is not just name, packaging or symbol but also in history and reputation of the brand/product. It impacts the choice of the consumer as well as their purchase decision. For example, if one wants to buy a Video Game Console or a food product, they would prefer PlayStation[xv] for the former and McDonalds[xvi] for the latter.
For Trademark Registration, it requires a logo or a symbol which should be unique or not familiar in nature. Trademark Search should be done for this purpose. A trademark attorney should be hired during the trademark registration process. Trademark Registration process is mentioned under Chapter 2 (Sections 3–17) of The Trademarks Act 1999[xvii].
3. Patents- Types of patents are prevalent in the food industry like food recipe, food composition and cooking techniques. There are certain criteria that needs to be followed:
i. It should be novel/original creation.
ii. It should be a non-obvious creations. In other words, it has a technical steps and without using it, someone skilled also cannot make it by merely using the ingredients.
iii. It should have a utility value. It means that it must be useful or have application in history.
iv. The duration of the utility patent is 20 years.
Section 3(e) of The Patents Act, 1970 means that a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.[xviii] It means that if a particular recipe already exists as a prior art and if the recipe that is seeking a patent is a mere modification of the original recipe, it would not receive a patent. [xix]
4. Trade Secret- Article 39(2) of the TRIPS Agreement says that-
i. The information must be secret i.e. it is not generally known/easily accessible to, circles that normally deals with the kind of information in question.
ii. It must have a commercial value.
Example of trade secrets- KFC’s spices[xxii], Coca-Cola’s secret ingredients[xxiii], McDonalds’ secret recipe[xxiv] In 2007 two former Coca-Cola employees were sentenced to prison for attempting to sell the highly restricted, confidential information to its rival Pepsi. Pepsi tipped of the FBI and the latter ran a sting operation and caught the 2 charging them with conspiracy and wire fraud where they were imprisoned for 5–8 years and had to pay $40,000 fine.[xxv][xxvi]
Although there no uniform trade secrets legislation in India, it must be noted that trade secrets are very important in Indian businesses especially among certain employees and sometimes people outside of the organization like suppliers, franchisees etc. The employers must rely on confidentiality clauses in their contracts with the outsiders.
In employees’ cases, they must not disclose the information to the outsiders even if their employment periods are over for their own benefit. In Desiccant Rotor International Pvt Ltd Vs. Bappaditya Sarkar and Ors.[xxvii] The Delhi High Court held that the non-solicitation clause did not amount to the trade restriction or business or profession and thus it would not be hit by Section 27 of the Indian Contract Act, 1872[xxviii].
The courts took strict views against the employees who use trade secret or confidential information (which they were entrusted in their course of their employment) as a “springboard” in the course of their business of career.
Sections 405–409 of the Indian Penal Code talks about criminal breach of trust and its remedies[xxix]. Section 415 of IPC defines cheating[xxx] and Section 417 talks about the punishment for cheating which could punishable for 1 year imprisonment and/or fine.[xxxi] Section 418 of IPC talks about cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect and the person punishable under this section will be punished for imprisonment which will extend to 3 years and/or fine.[xxxii] [xxxiii]
5. Designs Rights- To oblige the design rights, few conditions must be conditions must be satisfied-
i. The design should be fresh, new/original.
ii. The design should be applicable to an article.
iii. The design should be non-obvious.
iv. There should be no earlier disclosure of the design
v. Design rights last for 10 years and must be renewed for 5 years. Oreo cookies are some of the best example of design rights.[xxxiv]
Scope of protection of designs under the Designs Act 2000[xxxv] exclude-
i. Any mode or principle of construction.
ii. Anything which is in substance a mere mechanical device.
iii. Any trademark mentioned under section 2(1)(v) of the Trade and Merchandise Act 1958[xxxvi] or property defined in Section 479 of IPC[xxxvii] or any artistic work defined under Section 2(c) of The Copyright Act, 1957[xxxviii].
Culinary is a rising profession in India. Number of people are choosing culinary mostly due to the oversaturation of other fields like engineering, medical and MBA and the current generation is showing disillusionment towards the said fields. Because of this culinary art industry is booming in India. And as businesses boom in India, there will always be risk of being copied and in most cases, ruined by people who can’t form their original ideas. This has been seen in many fields and mediums in entertainment. It is hoped that the laws in the country become stricter to avoid any violation of Intellectual Property Right and new laws should be made so that the IPR laws in India become more flexible in nature which could help sort out any disputes in a quicker manner. Thus culinary and other professions could become more business/competition friendly as well as IP friendly.