Martinis, Margaritas, Pina Coladas, Tequila Sunrises... Traditional cocktail concoctions are universally known and well-loved, and artisan bartenders in Melbourne delight in crafting new and exquisite combinations of flavours. Are there legal protections available for the bartenders that carefully craft these recipes? What does it mean for traditional cocktail recipes?
Turns out, protecting cocktail recipes is a very difficult task.
Can you patent a cocktail recipe?
Patents grant a legally enforceable right over a device, substance, method or process provided it is novel, inventive and useful. But most cocktail recipes would fail on the ‘inventive’ requirement for being a simple mixture of known ingredients (Patents Act 1990 (Cth) s 50(1)(b)(i)) or producing a substance by mere admixture (Patents Act 1990 (Cth) s 50(1)(b)(ii)). The US position is largely the same - such recipes would lack the requisite creativity and is uncopyrightable as a mere listing of ingredients or simple set of directions, according to the US Copyright Office.
Protection as a trade secret?
An unregistered patent is a trade secret. Great levels of secrecy to conceal cocktail recipes are a thing of the past, and very difficult to implement in practice, barring the extreme secret keeping methods in the likes of Coca Cola. Bar owners may build in confidentiality and restraint of trade protections into their employment agreements, but it would require great care and skill to prevent any employees or previous bartenders from taking the knowledge of cocktail recipes with them when they leave.
Copyright
Under the Copyright Act 1986 (Cth), if a cocktail recipe is written or recorded in audio-form, in a specific way, this would receive automatic copyright protection. The idea of the cocktail itself, the ingredients, timing and methods of preparing the cocktail, will not be protected. Also, other people cannot be prevented from making the cocktail or writing their own methods of making it. As such, protection under copyright is limited.
Other approaches?
Enterprising bartenders should think big. Entire bar programs such as full recipe menus, training materials, operating procedures can be licenced. Licences allow the licensor to transfer the right to use the intellectual property to the licensee. The intellectual property owner benefits by receiving a sum to compensate for loss of future earnings and avoid the risk of the product not being successful. The licensee benefits in being the sole recipient of the profits from the product.
Conclusion
Recipes are not easily afforded protection under existing intellectual property categories. However, there are alternative methods to ensure that your business can thrive despite the lack of intellectual property protections for your cherished concoctions.
To discuss how to protect, licence or upscale your business contact us.
