Forums: Discussions for entrepreneurs and small business.

I`m wondering if anyone can offer advice on protecting recipes and items that we have designed and use for our company show setups.

 

We have a line of gourmet foods, dry mixes that customers purchase and make at home.

 

I always figured it probably wasn`t worth it to try to protect anything as I`ve been told that even if you have a patent, or copywrite or trademark as long as a competitor changes their product by 10 or 15 percent, not sure exactly what it is, they can basically copy and sell your product.

 

Also, for instance, we have a Spinach dip. Do you know how many Spinach dips there are available, probably a bazillion. So why worry about this right? Of course from this weeks headlines, after being in business for I don`t know how many years, but a lot, seems that KFC is making moves to secure their secret recipe. . .so

 

Here is my problem. . .I`ll try to explain this.

 

Our product has become very popular in the areas that we market. At the last few shows we have participated in, the competition is buying our product up. Are they going to try to copy us? Don`t know. . .We had one tell us outright that they were.

 

We also have some chillers that we have come up with. We have a name for them and are asked all the time if we sell them. We use them only for our displays. Long story on the selling of them, they work great for us, just not so great for personal home use. In any case, this competitor also looked our design over pretty well and asked if we cared if they use our idea. HELLO! Yes we care, this is our idea, all of our sellers use these holders and all of our booths at shows are easily identified by our unique setups.

 

How would one go about protecting a recipe or food product and our chillers. What do I do if at the next show we are participating in, they are there with our product and our setup? Any ideas?

Ok, that was what I thought would need to be done.

 

I guess my way of just ripping of their legs and shoving them up their _ _ _ (you fill in the blank) and making them walk around until they swear to stop copying me is not going to work. . .gosh, where did that come from?

 

I need to find a lawyer, I`m checking out your site. Don`t be scared if I call, I`m usually not a violent person.

LOL!  Boy if I could count the number of times I`ve considered that remedy.... But I digress from the original question....

 

I`d agree that it`s a trade secret matter and that you could definately pursue an action based on infringement of a trade secret.  However, I`m not so sure that it is (at least as far as the recipe is concerned) a trademark matter. 

 

Recipes are tough.  Recipes that are lists of ingredients aren`t subject to protection under copyright law (they`re only protectable when you`ve done a bit of writing about them (i.e., instructions, etc.) where you`ve created for a cookbook or something similar.  But copyright wouldn`t protect the method, just the writing itself from copying.  And even if it did, you wouldn`t want to register the recipe for copyright protection because then your recipe is public record. 

 

Your display "chiller" on the other hand, may be protectable as a three dimensional work under US Trademark law.  Non-functional three-dimensional trademarks are protectable if they are "inherently distinctive of the source of goods or services or has acquired distinctiveness," (which you`re saying that they are).  Your problem is that they also need to be non-functional.  

 

Now, you could copyright the design of the chiller, but it wouldn`t protect someone from using the functionality.  It`s definately a matter for an experienced intellectual property attorney.

 

Let me know if you have other questions.

 

Deena

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Deena, thanks. I`ve had some more conversation with others on whether it is even worth it. Even if you can try to "cover" something, then you have to pursue it, pay for it, etc. Sad isn`t it.

 

It is indeed.  Sorry. 

 

Deena