The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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CHEFS RIGHT TO FOOD

Ranjana Ferrao*
Abstract: Today the culinary industry is flourishing like every other field of science and technology. There are innovations and developments in the food industry. It is becoming increasingly common for producers of food and drink to try and develop a strong identity for their products. Cooking involves creativity and requires fresh ideas hence it may constitute a component of Intellectual Property Rights. However the problem arises in the absence of a legal definition the chef who creates his masterpiece dish what kind of protection can be granted for his creation. This Article tries to explore the rights of the chef over his food. Key Words: Food, IPR, India.

Introduction: Indian food is different from rest of the world not only in taste but also in cooking methods. It reflects a perfect blend of various cultures and ages. Just like Indian culture, food in India has also been influenced by various civilizations, which have contributed their share in its overall development and the present form. Food in the north India, to begin with, Kashmiri cuisines reflect strong Central Asian influences. In Kashmir, mostly all the dishes are prepared around the main course of rice as it is found abundantly in the beautiful valley. If Saag1 is a delicious and famous in Kashmir. Lucknow is better known for Nawabs and their favourite Kababs. Ghevar and Malpuas are finger liking in Rajasthan. While Bengali Rasagolla, Rasomalai, Mishti Dahi and Sandesh are savoured all over the world. In Hyderabad one can relish the wonderful biryanis. Gujarat is well known for Dhokla, Khandvi , Kachori . while in Maharashtra the Puran Poli and Wada pau are equally relished. Goa has a strong Portuguese influence in its food in the cooking style as well as in the dishes. Some of the major dishes of this region are the sweet and sour Vindaloo, sorpotel, Bebinca and prawn molie .While in Kerela Appam, Idiyapam, Payasam and the mouth watering banana chips are famous. In most Indian Household have atleast one signature dish which is their speciality. Each region has its one unique taste and flavour. Most of these recipes are not written down but rather handed down for generations. Today the culinary industry is flourishing like every other field of science and technology. There are innovations and developments in the food industry. It is becoming increasingly common for producers of food and drink to try and develop a strong identity for their products 2 . In recent years, chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress for their distinctive look and feel of a business. Many have even obtained patents for the techniques and even their recipes. Today one has to answer questions like who actually has ownership of the product or the method? It is easy to establish in cases such as Champagne, and the Goan Feni where a distinct geographical boundary defines who can use the name. What about dishes which surpass geographical limitations? In most countries protections norms are based on issues of tradition, authenticity, quality, heritage, culture etc. Since food has become global today each country is involved in marketing their food as part of the growing tourism. Food is seen as a medium to bring economic benefit to the country 3 . Where there is economic benefit Intellectual property rights automatically find centre stage. For a country to gain recognition of their cuisine the defence is that it has always been part of their heritage. This offers the
* Assistant Professor, V.M. Salgaocar College of Law, Miramar Goa, INDIA.
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That is prepared with a green leafy vegetable known as the 'Hak'. Sullivan Patrick, Value-driven intellectual capital : how to convert intangible corporate assets into market value, John Wiley, New York 3 Berman, From ideas to assets

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biggest challenge for competitors in case a dish is prepared from locally grown spices which the other country may have to import. Most difficulties will arise where protection is far more specific and ba sed upon single dishes or products. The economies of many regions would be affected if they were suddenly forbidden to produce food items in the way they may have been doing for tens of years, possibly even centuries. Defining Chefs Rights: A chef is defined as somebody who is in-charge of preparing food. Traditionally, chefs have always learnt and copied or rather improved by experience from each other. Some travel from one place to another and in this process learns the dishes of that land. While others who are known as celebrity chefs publish books of their own recipes. In this context how does one determine that the chef has right to ownership of the dish? Foodies argue that if rights were granted to chefs years ago, we not enjoy the diversity we enjoy today. On the other hand the IPR Experts argue that what happens if a food item is given protected status then will it be available in the original locality is the larger question. Right to food as a human right: The right to adequate food is recognized in specific instruments such as the Convention on the Rights of the Child, 4 the Convention on the Elimination of All Forms of Discrimination against Women 5 , or the Convention on the Rights of Persons with Disabilities. 6 But it is stated most explicitly, at a more general level, under Article 25 of the Universal Declaration of Human Rights7 and under Article 11 of the International Covenant on Economic, Social and Cultural Rights 8 . In 1996, the World Food Summit convened in Rome. It requested that the right to food be given a more concrete and operational content. A number of initiatives were taken as a result. In 1999, the UN Committee on Economic, Social and Cultural Rights, the body of independent experts monitoring States compliance with the Covenant on Economic, Social and Cultural Rights, adopted General Comment No. 12 on the right to food. The mandate of the Special Rapporteur on the right to food was established by the Commission on Human Rights 9 . Following the request of the 2002 World Food Summit five years later, an Intergovernmental Working Group was established under the auspices of the United Nations Organization for Food and Agriculture 10 in order to prepare a set of guidelines on the implementation of the right to food. This process led to the adoption of the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security 11 . The Guidelines are a set of recommendations States have chosen to adopt to assist in the implementation of the human right to adequate food. They offer practical guidance to States about how best to implement their obligation, under international law, to respect the right to adequate food and to ensure freedom from hunger. The right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement. This will be possible only if the one cooking is provided economic and other freedoms to cook food so that it can reach everyone. The right to adequate food will have to be realized progressively. Trade Secrets: Any confidential commercial or business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing, industrial secrets and or commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information. The subject matter of trade secrets is usually defined in general and broad terms and includes recipes, formulations, sales methods, distribution methods, consumer profiles, advertising strategies, lists of
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See: (Art. 24(2)(c) and 27(3)), See: (Art. 12(2)), 6 See: (Art. 25(f) and 28(1)) 7 Adopted by G.A. Res. 217 A (III) of 10 December 1948 8 Adopted on 16 December 1966 9 By Resolution 2000/10 of 17 April 2000 10 FAO 11 On 23 November 2004, by the 187 M ember States of the General Council of the FAO,

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suppliers and clients, and manufacturing processes. While a final determination of what information constitutes a trade secret will depend on the circumstances of each individual case, clearly unfair practices in respect of secret information include industrial or commercial espionage, breach of contract and breach of confidence. How are Trade Secrets protected by food companies? Coca Cola, Pan Parag, Pepsi Cola, scented tobacco, perfumes, flavour recipes, have been successful in protecting their secret recipes for years. Trade secrets are protected without registration, that is, trade secrets are protected without any procedural formalities. Consequently, a trade secret can be protected for an unlimited period of time. For these reasons, the protection of trade secrets may appear to be particularly attractive for food industry. There are, however, some conditions for the information to be considered a trade secret. WTO 12 agreement on TRIPS13 also recognises the concept of trade secret. Compliance with such conditions may turn out to be more difficult and costly than it would appear at first glance. While these conditions vary from country to country, some general standards exist which are governed by the Agreement on Trade-Related Aspects of Intellectual Property Rights 14 If a food company develops a manufacturing process of its products that allows it to produce its goods in a more cost-effective manner with a specific taste and appearance, such a process provides the enterprise a competitive edge over its competitors. The enterprise in question may therefore value its know-how as a trade secret and would not want competitors to learn about it. It makes sure that only a limited number of people know the secret, and those who know it are made well aware that it is confidential. When dealing with third parties or licensing its know-how, the enterprise signs confidentiality agreements to ensure that all parties know that the information is a secret. In such circumstances, the misappropriation of the information by a competitor or by any third party would be considered a violation of the enterprises trade secrets15 . To prove the point that it is a breach of confidential becomes challenging. Cases in which food industry may benefit from Trade Secret Protection While a decision will have to be taken on a case-by-case basis, in the following circumstances it would be advisable to make use of trade secret protection. When the recipe is not patentable. Many blending operations and combination of ingredients. Trade secret protection may be granted. When someone have applied for a patent and are waiting for the patent to be granted. When the trade secret is not considered to be of such great value to be deemed worth a patent Patent Protection: The food industry will face a choice either to patent the invention or to keep it as a trade secret16 . Patents may be granted in case of recipes, customers lists or manufacturing processes that are not sufficiently inventive to be granted a patent17 . On the other hand those recipes which fulfil the patentability criteria and could therefore be protected by patents18 . The Patent Act does not define the expression secret or secret use depends on case to case basis. If a food or article is sold it will negate secret use. The act of sale gives the means of knowledge to a person within the country who is free to make use of it. If the manufacturer manufactured a substance with his employee without any obligation of confidence it will not be regarded a secret. Authors rights: Are authors rights the best incentive for grand chefs to be creative? Answering this involves evaluating the relevance of this implementation and comparing this system with other mechanisms proposed by intellectual property. The specificity of gastronomic food and particularly the fact that it disappears when it is consumed seems logically to exclude gastronomy from the definition of authors rights. In fact, some commentators claim that only a permanent work can be covered by authors
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World Trade Organization Trade Related Aspects of Intellectual Property Rights 14 (TRIPS Agreement) see: Art. 39. Information must be secret. It must have commercial value. It must have been subject to reasonable steps by the rightful holder of the information to keep it secret. 15 N.B. Zaveri, Patents for future : future for mankind future for inventor & owner future for science & technology, Vakils, Feffer & Simons, 2001 16 http://www.pfionline.com/index.php/columns/ipr/139-understanding-trade-secrets-in-food-industry 17 Though they may qualify for protection as a utility model under Patent Law). India does not protect utility patents 18 Khader Feroz, The law of Patents with special Focus on Pharmaceuticals in India. (Nagpur: Lexis Nexis Butterworths 2009)

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rights. But some examples like Land Art 19 which are ephemeral by their very nature, do not theoretically exclude gastronomy from the realm of authors rights. Furthermore, the role of Food guidebooks has to be taken into account. Their selection ensures chefs of their notoriety and surprisingly chefs become unique through the intervention of guidebooks. Food guides are nothing but a real extension of the chefs personality. So the question is not how to prevent copying but really to know whether authors rights are of any use in protecting good food that cannot be copied. In this respect, the answer is not favourable to authors rights. In fact, introducing authors rights into gastronomy would give rise to entropy problems related to the difficulties of exhaustively listing the actions performed by each individual involved in gastronomic creation. This system would become very complex and the existence of authors rights would prompt claims from many categories of gastronomic workers, including kitchen staff as they are physically involved in production and restaurant room staff who do slicing, flambing, etc. They are all performers of the food amenity. They might conceivable invoke their performing rights 20 . IPRs in common heritage assets : Common heritage assets are difficult and almost impossible to protect. Actually, these cultural heritage assets do not belong to any identified craftsman but to the people who make up the gastronomic profession 21 . The French cooking style may be copied in China, but in this case there is no direct competition between copiers and the original craftsmen, for location reasons. In this respect it seems clear that the means potentially used to protect common gastronomic heritage assets are not legal enforcement rules but rely on intervention by trade unions and associations. They allow information to circulate in professionals circles. Recipes as Creative Works: Cooking is a skill and an art, which, practiced well, makes life more enjoyable. Although technique is important with some dishes, in many cases a recipe alone is sufficient to allow a skilled cook to prepare almost any dish. Because delicious foods are in demand, persons with good recipes may well consider publishing these in hopes of profiting from their talents. Copyright law protects original, creative expressions fixed in a tangible medium. These standards are not especially high. A run-of-the-mill story with stereotypical characters and a predictable ending will probably be creative and original enough, as long as it isn't copied or derived from an existing work. And the requirement that the expression be fixed in a tangible medium applies to electronic copies and even data stored in computer random access memory (RAM), which disappears once the computer is switched off. Courts are inclined to hold, however, that an individual recipe lacks sufficient creativity to qualify for copyright 22 . Under this view, a recipe is really a process for creating some edible product, and not a creative expression of the sort copyright law is designed to protect. Ingredients: Recipes usually include a list of ingredients to work with. The list alone cannot be copyrighted, which is why certain popular recipes or specific combinations of food may be printed in different cookbooks. For example '1 cup Sugar, 1 slice lemon' alone can easily be found in multiple cookbooks. It is the description of how they are assembled, put together or used that makes a recipe unique to the writer. Literary Expression: Whereas the list of ingredients cannot be copyrighted, the procedure could be. Taking the example of tea and lemon, if an author provides instructions about how to steep tea and add the lemon, another writer cannot repeat the same procedure word for word and publish it as her own. The intellectual effort the original writer gave to create the dish in a certain way makes it different from another recipe with the same ingredients 23 . Each writer has her own voice and tone on how to prepare and finish a recipe.

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e.g. the creations of Christo Performers rights are granted to artists in music and Cinema 21 Lury Celia, Cultural rights technology legality and personality 22 B.L. Wadhera, Law Relating to Patents, Copyrights and Trademarks, Designs and Geographical Indications. (Universal Publishing House 2002) 23 http://www.copyright.gov/fls/fl122.html

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Cookbooks: Cookbooks contain multiple recipes and information on preparing foods. Generally, a cookbook is an original compilation and can be copyrighted if it has personal experiences pictures or personal tag lines. Only the publisher or author may give permission to republish recipes from a cookbook, unless it is in the public domain. Geographical Indications: Geographical indications can acquire a high reputation in the minds of the consumers and offers great value to consumers. They are valuable commercial assets for the society. For this very reason, they are often exposed to misappropriation, counterfeiting or forgery, and their protection at the national as well as international level should be ensured. Darjeeling, Champagne, Cognac, Roquefort, Chianti, Pilsen, Porto, Sheffield, Havana, Cheddar, Tequila are some of the well-known examples which have been granted GI protection. They are associated throughout the world with products of a certain nature and quality. One common feature of all these names is that they are name of the places or that is to say, their function of designating existing places, towns, regions or countries. However, when we hear these names we think of products rather than the places they designate. Geographical Indication and its significance: The Paris Convention for the Protection of Industrial Property does not contain the notion of geographical indication 24 . This is the terminology traditionally applied and still officially used in the conventions and agreements administered by World Intellectual Property Organization. 25 The distinction is made between indications of source and appellations of origin: indication of source means any expression or sign used to indicate that a product or service originates in a country, a region or a specific place, whereas appellation of origin means the geographical name of a country, region or specific place which serves to designate a product originating therein the characteristic qualities of which are due exclusively or essentially to the geographical environment, including natural or human factors or both. Difference between indications of source and appellations of origin: The use of an appellation of origin requires a quality link between the product and its area of production. This qualitative link consists of certain characteristics of the product which are exclusively or essentially attributable to its geographical origin such as, climate, soil or traditional methods of production 26 . On the other hand, the use of an indication of source on a given product is merely subject to the condition that this product originates from the place designated. Appellations of origin can be understood as a special kind of indication of source. Traditionally, the term indication of source comprises all appellations of origin, but, in its general use, it has become rather a designation for those indications of source which are not considered to be appellations of origin. Origin of the term Geographical Indication: The term geographical indication is also used in the EC Council27 on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs and in the Agreement on TRIPS28 . In both the texts, this term is applied to products whose quality and characteristics are attributable to their geographical origin, an approach that closely resembles the appellation of origin kind of protection. In other words, mere indications of source are not covered by the specific notion of geographical indication used in those two legal texts. The term geographical indications was first used in TRIPS which defines it as any indication that identifies a good as originating from a particular place, where a given quality, reputation or other characteristics of the good are essentially attributable to its geographical origin 29 .The definition of GI in the Geographical Indications of Goods (Registration & Protection) Act, 1999 is based on the TRIPS definition with the added criterion that in the case of manufactured goods at least one of the activities of
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Article 1 paragraph (2) defines as subjects of industrial property, inter alia, indications of source and appellations of origin. WIPO 26 W.R. Cornish, Cases and Materials on Intellectual Property. (New Delhi Universal Publishing House 2001 ) 27 Regulation No. 2081/92 of July 14, 1992, 28 http://www.pfionline.com/index.php/columns/ipr/122-geographical-indications-natural-competitive-advantage 29 Article 22 of the TRIPS states Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a M ember, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

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either production or processing or preparation of the goods concerned should take place in the specified geographical area30 .Thus, GIs act as a signalling device conveying information about the origin, quality or reputation of products which, on one hand enable indigenous producers to get market recognition and build goodwill around their products and, on the other hand protect consumers from counterfeit goods. Since GI products carry assurance of genuine quality, they often fetch a premium price at the market. A consumer survey conducted in EU has shown that consumers are willing to pay more for products whose brand quality is designated by a GI31 . This in turn helps to enhance the income of genuine producers. Unlike other recognized forms of intellectual property, GI has tremendous potential for the upliftment of the poor and marginalized sections of the society. Being a collective right, it can effectively protect the livelihood of the artisans or other local communities who specialize in items unique to particular geographic locations.6 Therefore, proper protection of such GIs are very important. The registration of Tirupati Laddu as a GI presents an interesting case study in this regard. The Tirumala Tirupathi Devasthanam (TTD), the Trust which administers the ancient temple of Sri Ve nkateshwara in Andhra Pradesh secured a GI protection for the sacred prasadam offered to the devotees under of the GI Act to prevent others from making and marketing laddus under the same name32 .This is arguably the first time anywhere in the world that an offering at a religious shrine has been recognized as a GI. Therefore, the Trust does not represent or further the collective interests of a community of stakeholders which seems to be a precondition for granting GI to an association or a body. The enormous revenue generated from the sale of the Laddus goes entirely into its pocket without having to be shared with other producers. TTDs case is akin to a private enterprise trying to procure exclusive rights to use a particular mark or sign on its products to distinguish them from that of competing producers. Continuing with this current trend in India, the Bambino Agro Industries which is reportedly the exclusive manufacturer of pasta with durum wheat semolina in India, has recently applied for a GI for Bambino vermicelli. Since Bambino vermicelli is produced by a single producer in different states, and has a registered trademark, and the GI office may even grant it GI status 33 . Who owns Geographical Indication for commercial purpose? There is no owner of a geographical indication in the sense that one person or enterprise can exclude other persons or enterprises from the use of a geographical indication, but each and every enterprise which is located in the area to which the geographical indication refers to has the right to use the said indication for the products originating in the said area, but possibly subject to compliance with certain quality requirements such as prescribed, for example, in administrative decrees governing the use of appellations of origin. But now with the Tirupathi Ladoo getting GI status lots of private owners may spring up. Concluding Observation: With shows like Master Chef and several other cooking show its time now India decides to bring in a protective Regime to protect the dishes of these chefs. Copyright would be an interesting option. As of now the only available and safest option is Patent.
Section 2(1)(e) of the GI provides that geographical indication, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or localit y, as the case may be. Explanation.-For the purposes of this clause, any name which is not the name of a country, region or locality of that country shall also be considered as the geographical indication if it relates to a specific geographical area and is used upon or in relation to particular goods originating from that country, region or locality, as the case may be. 31 Kasturi Das, Protection of Geographical Indications, An Overview of Select Issues with particular reference to India, (Centad Working Paper No. 8, 2007), available at http:// www.centad.org/cwp_10.asp. (Last visited on M arch 2, 2010). 32 Tirumala gets Geographical Indication Certification, THE HINDU, September 16, 2009, available at http://www.hindu.com/2009/09/16/stories/2009091652081200.htm ( Last visited on M arch 1, 2011). 33 3 NUJS L. REV.107 (2010)
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