Trademarks cannot be merely descriptive or deceptively misdescriptive of goods or and services
Should I go the trademark or copyright law route?
Images – It depends.
Baseline Inquiry – Is its intended use to identify the source of goods or services? If an image is used temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo.
Copyrightable recipe – The instructions for a salad recipe and not the ingredient list can be copyright protected. The copyright prevents others from using the instructions without the author’s permission.
What is protected – any unique methods or systems of creating the salad dish. The recipe must include preparation instructions or other information beyond just a list of ingredients and must be recorded in writing or an electronic media (cooked up in the authors’ mind or head is not enough).
There is no expressive element in an ingredient listing. Mere recitation of facts or as part of a compilation are not original and do not receive copyright protection but may receive protection where the factual compilation features an original selection or arrangement of facts.
- Copyright protection is available for your written description of the way the ingredients are assembled and prepared in order to create the food.
- – the cooking technique, the manner and order in which the ingredients are assembled, and possibly even the plating presentation of the food may provide grounds for protection under copyright.
The directions for combining the “listed facts”, the recipe ingredients, has to be more than an expression of the directions on how to make the recipe. Such expression has to be “Original” meaning the work was produced by the author’s own intellectual effort and not by copying an existing work.
The International Association of Culinary Professionals is of the view that “the only time a recipe should be printed without attribution, is when it has been changed so substantially that it no longer resembles its source”.
Recipe versus Recipes within the cookbook.
The listing of ingredients may not be individually protected but the book itself would be protected as an original work of authorship.
The originality is the creative effort involved in arranging or combining the various recipes into a book.
Why Register your Trademark or and Copyright your work?
It gives the trademark or and copyright owner the right to file infringement proceedings to prevent unauthorized use of their work or property.
At the state level, the main advantage of registering a trademark or service mark with the Secretary of State is public notice of a person’s claim of ownership of the trademark or service mark. This will reduce the likelihood that another person will inadvertently choose a mark confusingly similar to the registered mark.
Interested in registering your trademark? A good starting point is a general search on the internet engines and of both the state and federal registries. Also a search of phone directories and county records may be helpful. The search of the Trademark Office database is to ensure that the slogan or phrase is not currently registered or in use or applied for that is similar to your mark and used on related products or for related services.
In addition to information provided by the U.S. Patent and Trademark Office, consulting an Attorney is advisable. An attorney would be better able to assess the legal significance of federal versus state registration of trademarks and what other protections an owner should seek.