The gastronomic industry is currently a highly competitive market, with a wide capacity for innovation and development. It could be said that this industry is integrated, not only by the literal preparation of dishes at a culinary level, but also has a series of services that complement the diner's experience, such as the ambiance, the type of decoration of the place, lighting, food safety, cleanliness, music selection, customer service, cost to product/service ratio, variety of products, among others.
This industry has great opportunities to protect its creations , that is Intellectual Property , which will allow not only to strengthen its position in the market, secure its intangible assets, but will also to act against third parties that may try to take advantage of its efforts or success, known as "free riding".
The gastronomic industry is largely creative. This creativity ranges from the selection of the venue, its design and ambience, menu planning, the visual design or plating of dishes and beverages, the selection of materials to prepare the food offer, the final result on the palate derived from the culinary and mixology creations -if the service is provided-, the name of the premises and the brand that represents and distinguishes it, the visual design of the menu, web page, social networks, among others.
The above descriptions are some of the examples of the efforts and possibilities of protection that the owners of this type of establishments can make. I begin with some brief, but particular examples:
The protection of the trademark and trade name of the establishment is imperative to prevent third parties from creating an establishment that, under some "similarities" creates a risk of confusion or business association. These actions usually fall under bad faith and unfair competition, however, in order to take legal actions and respective measures, it is necessary that the owner or representative of the establishment or business, proceeds with the registration of at least one trademark sign, either the trademark or the trade name, ideally the protection of both.
Subsequently, the artistic protection of the designs of the web page, menu (in its graphic design) and any original and creative audiovisual material prepared as advertisement promoted and displayed in social networks is feasible. This original visual material may be protected as copyright. Taking the advantage of this brief reading we recommend that any service provided by a computer engineer, graphic designer, plastic artist or any other professional of the artistic and/or graphic industry, be supported by a contract in which such professionals assign the economic rights to the owner of the restaurant, so that in the future, such work does not have contingencies of paternity, reproduction, exhibition or even modification of the design of the website from the source code.
A recurring issue in the professional practice is the consultation regarding the power to protect a culinary recipe. In Costa Rica, this type of creation is not eligible for copyright protection, however, in Argentina, for example, there is protection for a highly creative, original, fusion and experimental cuisine dish, however, this dish is not protected from its recipe, but from its visual materialization. Meaning that, the limitation of copyright protection does not prevent the owners of the restaurant from protecting their culinary creations.
The protection of the recipes can be done through industrial secret or confidentiality contracts for those who have access to the preparation and creation of the dishes. This type of contract allows the creators or owners of restaurants to protect what their employees are restricted from sharing under penalty (fine), for example.
This type of protection, whether it is a trade secret or the subscription of confidentiality agreements, is more relevant in the event of high personnel turnover or opening of new branches or establishments under the same brand and concept.
Another possibility of protection for the owners of this type of industry is the so-called "trade dress". This protection is provided either as a copyright or as a trademark, depending on the particularity of each case, and it applies when the design and ambience of a store has such a particular distinctiveness that its design is its own and anyone who knows the brand, when entering one of the branches can recognize it, from the design elements that compose it. For example, the selection of art, ornaments, colors, location, or distribution of the spaces, etc. This is easy to explain in large transnational companies in the food industry or not, where upon entering one of their local establishments, we can easily recognize them based on the design of the space, colors, etc.
The registration of non-traditional trademarks can be an additional element to protect, such as sound or scent marks, which will be the subject for another article. However, we hope that these brief words can guide you in clarifying and visualizing all the ways and forms of protection of your intangible assets, which in some cases can be applied to other types of industries, as the one mentioned herein.