How your food can be protected by Intellectual Property

Fit Kitchen has been successful in protecting its brand against Scratch Meals over the use of the wording “Fit Kitchen” on meals that were being provided to supermarkets. It was held that there was sufficient goodwill in the Fit Kitchen brand in order to establish the goodwill, misrepresentation, and damage necessary for there to be passing off. The decision, available here, highlights the ever growing importance of protecting the intellectual property in the food we eat.

The names on food products, the way they look and even the taste they can have, has all been considered by the court when deciding on what should be protected. This is becoming more and more important with the increasing demand in plant based foods which can often mimic or parody a meat based “burger” or “steak”. For brands in the foods and drink industry, it is important to know where the various lines are drawn for the products they bring to market and what remedies are available when infringement takes place.

Plant based protection

With the increasing interest in plant based food, the burger you see on your plate may not in fact be a “burger”. This is despite the EU Agriculture Committee vote in 2019 to ban meat-based named for plant-based food. The UK has been slower to adopt any such changes and at the moment, vegan trade marks are more popular than ever before, with over 100 being registered in 2019. Whether some of these marks are challenged by meat producers over the use of meat based names like “burger” or “sausage” remains to be seen.

The food fights can exist between plant based alternatives as well though. Nestlé and Impossible Foods had a trade mark dispute over the trade mark IMPOSSIBLE BURGER, which is perhaps the best known plant based burger. for goods which included plant-based meat substitutes and planted-based burger patties. On 27 May, the District Court in the Hague in the Netherlands ruled against Nestlé in finding that the “incredible” burger would confuse consumers on the basis that there was already an “impossible” burger on the market.

Nosecco

A similar name-based dispute arose of the alcohol-free Prosecco – Nosecco. The Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, which promotes and enforces the PDO for Prosecco, took issue with the name being so close to Prosecco and challenged the trade mark registration. In order to use the PDO at least 85% of the wine must be made from the Glera variety of grape and the grapes must be grown in a specific area in Northeastern Italy. The wine must also have a minimum alcohol strength of 9%. The Consorzio filed an opposition to the NOSECCO mark on the basis that it was deceptive and this was upheld by the UK Trade Mark Registry. Les Grands appealed but were unsuccessful, with the High Court holding that it would be contrary to the EU law that protects PDO for there to be any “misuse, imitation or evocation”. Nosecco was held to be “evocative” and “deceptive” of a Protected Designation of Origin (PDO). Brands looking to imitate products which have a PDO should take note because the rules are different to trade marks.

Designs of chocolate

Food designs have come up as an IP issue before.  Waitrose was on the receiving end of substantial criticism following the release of a chocolate bar that resembled a Hotel Chocolate slab highlighting the thin line between inspiration and copying.  In the end Waitrose pulled production of the in-house chocolate bar and Hotel Chocolate was able to continue without similar interference.  This end result was reached amicably and without the need to go to court.  Whether a court would have come to the same conclusion is another matter.

Taking a photo of your meal – a future IP dispute?

Taking photos of your food may have moved from meals out in restaurants to home baked bananabread during lockdown, but have you ever looked at a photo of a meal and thought “I wish I knew how to create that”. Thanks to an “inverse cooking” system developed by Facebook- that process is one step closer. Facebook have developed a system that recreates cooking recipes from food images. The report, Inverse Cooking: Recipe Generation from Food Images, is another example of facebook using the vast non personal data sets it has at its disposal to train an artificial intelligence system.

The report states:

The dataset contains 720,639 training, 155,036 validation and 154,045 test recipes, containing a title, a list of ingredients, a list of cooking instructions and (optionally) an image. In our experiments, we use only the recipes containing images, and remove recipes with less than 2 ingredients or 2 instructions, resulting in 252547 training, 54 255 validation and 54 506 test samples.

Inverse Cooking: Recipe Generation from Food Images

The paper notes that visual recognition has come on leaps and bounds in recent years, but food recognition has lagged behind partly because of the cooking process which augments ingredients from their original state.  The system created generates a cooking recipe containing a title, ingredients and cooking instructions directly from a single image.  The system surpassed previous image-to-recipe systems and was even better than humans at determining images-to-ingredient prediction.  This advance in culinary technology raises intellectual property questions.

Generating recipes from images

The team took the approach that instead of obtaining the recipe from an image directly, it would benefit from the intermediate step of predicting the ingredient list first.  The instructions would then be generated on both the image and the corresponding list of ingredients.

Restaurants may not be best pleased if they lose customers on the basis of photos taken in their establishment and meals being recreated at home.  Worse still a competitor could use the technology to recreate a dish.
Restaurants are in a difficult position when it comes to allowing (or prohibiting) photos being taken of the meals that they provide because at the present moment (and state of technology) the businesses will benefit from the publicity of users posting on social media and encouraging others to visit.  However, as these technologies develop, restaurants will leave themselves open to technological advancements which in turn could be used to take business away from them.  With the code being made publicly available, there is little to stop a competitor visiting a restaurant and creating a recipe based on the instructions from the computer program, or even writing a cookbook based on this process.

Users of the AI system should be aware that copyright may protect a meal as a work of artistic craftsmanship provided the design is sufficiently original.  The design on the plate could qualify as a work of artistic craftsmanship on the basis that it has sufficient tangibility despite not being permanent.  The issue of tangibility was considered in the Charlotte Tilbury case – Iselstarr Holdings Ltd v Aldi Stores Ltd.  In this case, it was held that copyright subsisted in “Starburst design” which existed on the surface of the lid of makeup powder and “Powder design” which was a similar design on the makeup powder itself.  

The point of interest in the case was whether copyright could subsist in the powered design despite that design disappearing through the use of the make up.  It was held that, similar to sand sculptures, it is possible for copyright to protect the design embossed into powders.  In fact Deputy Master Linwood noted: “I can see no reason why the creator of a bespoke wedding cake could not claim copyright in his or her work.”  For chefs with artistic designs for their creations, it is worth bearing in mind the copyright protection available.  A portfolio of photos evidencing the work may be a useful practical step.

Protecting the taste of food

One part of the meal that cannot benefit from copyright protection is the taste.  This was made clear in the decision from the Levola Hengelo decision which related to cheese.  It was noted by the court that until it is possible with sufficient precision and objectively determine the similarity in the taste in the cheese in question it could not be considered a “work” for the purposes of copyright.  As a result it is will not be possible to find that there has been copyright infringement even when the taste is the same.

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