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Do ‘trade secrets’ offer enough protection?

Wednesday 2 October 2019

The product made according to a recipe can of course be seen, felt, tasted and touched – but the recipe itself, and the method by which it is manufactured, is intangible. Because these intangible elements of a product have tremendous commercial value, brands in the food and beverage industry go to great lengths to keep them secret.

Protecting a recipe or process is made more difficult by food labelling regulations requiring that key information about certain products – including ingredients – be displayed on packaging. Products can also be reverse-engineered, an approach made easier where ingredients are provided in detail.

Traditionally businesses have tried to protect their recipes and food production processes by keeping them secret. Two well-known examples are the Coca-Cola formula merchandise 7X and the secret blend of herbs and spices which go into making KFC batter.

Trade secrets are protected under UK law. If information relating to a trade secret is disclosed, in certain circumstances the owner of the trade secret can seek a court order (known as an injunction) to stop the unauthorised disclosure.

Protecting business assets using the trade secret approach can be a risky strategy

A business protecting a trade secret will always need to remain vigilant to ensure that such information is kept secret by considering practical security measures and ensuring that non-disclosure agreements are in place.

There is no protection against a third-party reverse engineering a process or recipe or independently arriving at the same result. Once a trade secret is in the public domain, it is of course no longer secret, and thus loses legal protection.

A better approach to protecting recipes and other intangibles

Patents may offer more protection than trade secrets in the food and beverage sector. Where food innovation relates to a product or process which is new, involves an inventive step and is capable of industrial application, such products or processes are patentable.

Once granted a patent entitles the owner to prevent others from exploiting the invention without their consent (or a license) for a period of 20 years from the date of filing.

As the number of patented products grows, it is important that any new producer in this area takes steps to ensure that its product is protected and does not infringe an existing patent.

For further information about patents and protecting intellectual property in the food and beverage industry, please click here.

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