Intellectual Property (IP) Protection for Signature Culinary Food Presentation: A Critical Analysis

I. Introduction

Of late, much attention has been paid to culinary art. This is essentially due to the plethora of emerging television cooking shows, celebrity chefs’ social media content, and cooking programs, thereby creating a popular food culture like never before. Aided by the ease of sharing and accessibility of such food recipes and food presentation skills on social media platforms, food has become a status and trend. Gordon Ramsay, Thomas Keller, and Heston Blumenthal have risen to the top of the gourmet industry by focusing on ‘the art of plating’, an often-overshadowed aspect of the culinary industry that has a significant influence on customer experiences or preferences and results in customer loyalty.

Chefs worldwide are generating stunning food plating and presentations. Culinary creation is a complex and laborious process involving multiple steps, including a selection of ingredients, formulation of the recipe, balancing of flavours, preparation of the recipe, and concluding with the presentation and plating of the prepared food dish with creativity and appeal. This entire process of creating a dish and designing it is a meticulous, creative, and time-consuming effort and requires recognition and protection to appreciate the individual’s effort. The culinary industry has grown from a mere indulgence to a large revenue-generating multi-media consumer industry. This laborious task of designing and beautifully plating has frequently resulted in the food's plating being the restaurant's distinctive selling feature, with customers identifying the food only with the restaurant or chef from whom it came.

Unlike writers, musicians, and painters, the chefs have no remedy when their laborious work is exploited. Here comes the need to evaluate the existing IP laws to determine whether there is any potential to seek protection and include innovative culinary food designs within the ambit of IP. Intellectual Property Rights Jurisprudence’s fundamental aim is to stimulate creativity and innovation by allowing creators to monetize and incentivize their works. Culinary food presentations are a unique art form. Therefore, identifying what kind of IP shall be used to protect culinary food designs and determining the proper scope and limitations incidental to such IP protection is essential.

Interestingly, culinary wonders are considered to be the brainchild of chefs who risked going beyond the box, paradoxically flourishing in the culinary sector infamous for a severe lack of IP protection and operating in the “negative spaces” of IP. Due to this cause, the culinary industry has continuously operated on an open-source paradigm and continues to do so. Even though innovation is regarded as the most vital aspect of this industry, there is a strong opinion that cooking is a derivative art. Since hundreds of generations of chefs accumulate the world’s culinary traditions, they are community-based, cumulative creations. There is no necessity to oppose the borrowing and sharing of cooking that has existed for a long time. What's more concerning is that due to the community-based norms in the culinary industry, a lot of borrowing and sharing goes on, most of which goes unnoticed and unacknowledged.

II. IP Protection for Culinary Food Presentation

There is an urgent necessity to examine the potential to expand intellectual property protection to creative and artistic food presentations. As a result, it is essential to analyze and investigate the necessity for an IP system that protects chefs' creative expression. Arguments have been made that the existing intellectual property frameworks aren't built to defend culinary inventions, and standards shouldn't be tampered with. Community-based norms and standards operate on ideologies shared by members of a specific community, defining the form and scope of assertable IP rights by a group member. Procedures for asserting intellectual property rights are also included, as are community-accepted consequences for offenders. In my opinion, this claim is misguided and that the existing norms of behaviour should be replaced by law-based legislation. Furthermore, cases of obvious plating knockoffs would have been avoided if community-based standards alone had stood the test of time. Incidents like the Interlude only serve to expose the significant gaps in community standards that a law-based sanctions system aims to address.

Authors like Emmanuelle Fauchart and Eric von Hippel explore the community-based system. They found that the norms-based systems had several lacunas, were no longer up to the modern world’s standards, catered only to a group of persons, and had no consequences for violations. Contrary to the norm-based system, the IP Legal System punishes and imposes financial sanctions. Culture-Based norms never go a long way, and therefore, we turn towards the IP legal system, which offers a lot of hope-giving culinary creations to the state in the space it truly deserves. The few recognized chefs and restaurants will be aware of their public image and reputation and restrict themselves to innovation without imitation. However, on the other hand, those who are still trying to make a name might not care to imitate in return since they do not fear public assassination or opinion. IP law-based system, significantly its provision regarding sanctions easily surpasses the community-based norms in the culinary based norms.

IP protection is available broadly under three labels, patent, copyright, and trademark. It is essential to determine the best-suited category for the subject matter of food plating. Food plating has emerged to distinguish restaurants since consumers often do not have the chance to taste or scrutinize food before ordering. Before making a reservation or sitting down for dinner, potential consumers analyze the presentation of the food through images on websites or in publications. IP protection is available broadly under three labels, patent, copyright and trademark. It is essential to determine the best-suited category for the subject matter of food plating.

III. Copyright Protection for Food Presentation in India

In India, the Copyright Act 1957 protects original literary, dramatic, musical, and artistic works and cinematograph films and sound recording from illegal usage. “Artistic Work” refers to any work of artistic craftsmanship that shall be protected under the Copyright Act, 1957. Further, according to the Practice and Procedure Manual of the Copyright of the Government of India, “Works”, neither used nor capable of being used in goods or services, may be included. Therefore, food plating, a presentation, shall be treated as an artwork and the outcome of craftsmanship, creativity, and art. The test of originality in India shall be used to determine whether a food playing or presentation can be protected under the copyright or not. In Eastern Book Company v. D.B. Modak, the Supreme Court of India provided for three tests or parameters based on which ‘originality’ shall be determined. The requirements include a "minimum quantity of creativity," "independent creation," and "skill and labour" on the part of the creator. If food plating or presentation satisfies these three criteria, then the work qualifies to be artistic; thus, copyright protection shall be claimed. It's worth noting that some people say that food presentation is indeed not "stable or permanent enough" to meet the requirements of being fixed in a tangible medium. It is important to point out that while the Copyright Act, 1956 is silent about fixation requirements, and the Copyright Manual on Artistic Works makes it very apparent that 'works' are protected by copyright if they can be 'fixed in a tangible form.' With the help of drawing and documentation, I believe that the entire art of food plating can be manifested in a tangible form. However, what is difficult is to maintain the permanent stability of the ‘work’, since consumption of the culinary food shall consequently destroy the work.

Nonetheless, it is important to note that copyright jurisprudence in numerous jurisdictions upholds the concept, notwithstanding the absence of the fixing requirement. For instance, in the French case of Robert v. Channel, the court declared that fixation is only used as evidence in infringement lawsuits and that it is not required to get copyright protection. The copyright in work is established when the outcome is expressed in a perceivable form. As a result of this approach, food presentation may be regarded as a representation of the chef's idea because the plating is perceptible enough. Currently, the courts in India lack technical parameters to accommodate food plating under the ambit of copyright protection. Meanwhile, legal connotations are expected in this respect, as guidelines and directions in furtherance shall establish the acceptability of the unconventional food presentation in India.

IV. Trade Dress Protection for Food Presentation in the USA

In the USA, many consider that trademark law shall be more befitting and offer the greater the chance of food plating or presentation being protected. Trademark law exists to allow the consumers to distinguish a certain product from other similar products but does not encourage ingenuity or invention. The Lanham Act, which governs trademark law in the United States, establishes three requirements for a subject matter to be regarded protectable as trade dress, which is a subset of trademark law. Further, it should pass the test of “distinctiveness”, “functionality”, and the ‘likelihood of confusion” to be held entitled to trade dress protection. Consumers are protected by trademark law, and extending trade dress to distinctive dish presentation and plating would eliminate consumer deception or confusion.

In Eastman Kodak Co. v. Royal Pioneer Paper Box Manufacturing Co., the concept of trade dress was originally recognized as being protected. The US Court ordered an injunction because the defendant's packaging resulted in the illegal use of the plaintiff's packaging or trade dress. Trade dress protects a product's image and look, as well as its get-up. Traditionally, Trade dress was defined as distinguishable features of a product's outer look. However, with several judicial interpretations, on some rather notable instances of food plating plagiarism or piracy, the interpretation of trade dress has evolved drastically. It currently encompasses all aspects that aid in the creation of an appealing visual image that improves the product's commercial and financial viability. In addition, the party seeking trade dress security must establish that the trade dress has no utility and that it has priority, meaning the party seeking protection must be the first in a geographic market to employ a mark on a product or service.

The “eGullet”, an online dining forum, started reporting that an Australian chef Robin Wickens, was serving dishes in his Sydney Restaurant, Interlude, which were identical to ones served at the American restaurants, Alinea and Wylie Dufresne’s in Chicago and WD-50 in New York. This event made news in the culinary world and demonstrated how important food presentation is in the restaurant industry. On Wicken's restaurant Interlude's website, the posters and food menu were exactly similar to those offered at certain prominent restaurants. In the culinary business, this sparked widespread indignation.

The first stage in determining if a Chef's trademark dish qualifies as a Trade Dress is to see if it has acquired a secondary connotation in customers’ minds. In Nabisco, Inc. v. PF Brands, Inc., it was found that Pepperidge Farm's goldfish-shaped crackers were assessed to have a "moderate degree of creativity." Since 1962, Pepperidge Farms has been selling goldfish crackers. It was the most popular cracker, and it had gained a lot of media attention. Nabisco began selling crackers shaped like dogs, cats, and fish in 1999. Nabisco was served with a trademark lawsuit by Pepperidge Farm. Pepperidge's fish crackers were declared to be "non-functional, unique, and renowned" by the court. Pepperidge was successful in preventing Nabisco from selling fish-shaped cheese crackers. Courts in the United States can use this case to decide whether a certain dish presentation has acquired secondary meaning in the eyes of consumers. The hurdle for a chef to establish that a meal has complete secondary significance, on the other hand, is high.

Trade Dress protection does not apply to functional product qualities. A particular product characteristic is functional or has utility, if it has an influence on the product's cost and quality, or if it is necessary for its use. Many types of plating are used in food presentation for appearance and branding objectives rather than for functional or utilitarian reasons. For instance, if a chef uses radish peels to create a free-standing statue on a plate, no utilitarian purpose is derived from placing such an element in the plate. As a result, a chef may make a good case that his food plating and its arrangement is non-functional enough to warrant Trade Dress protection.

Even when a chef can fulfil the secondary meaning and functionality criteria, it may be challenging to stop imitation of the food presentation. To succeed in an infringement claim, the chef must be able to prove that the imitated dish is likely to be confused by consumers. The Interlude incident sparked interest in the food world and showed how seriously food presentation, especially aesthetics, is considered in the culinary industry. This incident triggered a community-based outrage in the culinary industry. Therefore, whenever a chef’s food plating and presentation meet all three criteria for Trade Dress. The food presentations are just as deserving of legal safeguards as the distinguishing qualities of other items.

V. Conclusion

While I agree that no recipe, in and of itself, is sufficiently original to warrant intellectual property protection, this does not exclude IP protection for the component arrangements of artistically and aesthetically presented food. Concerns about food plagiarism relating to food plating or presentation must be brought under IPR laws’ purview. IP protection culinary food plating is crucial for the chef and the restaurant since a particular signature dish of a chef is often the restaurant’s unique selling point. Further, this protection fosters innovation and art; thus, it is essential to safeguard the food plating. The current culinary sector is awash in cutting-edge innovation, continually building breathtakingly gorgeous gastronomic creations that defy preconceived beliefs about how restaurants operate. Chefs work diligently to make delectable culinary dishes that distinguish the product from competitors, and those fulfilling the required standards have potential rights to seek legal protection to protect customers' interests by ensuring that they get exactly what they ordered while also preventing cheats from stealing the chefs' creations. As a matter of professional etiquette, chefs and individuals do not follow culinary imitations.

Even though the inclusion of innovative plating patterns under the appropriate IP Laws was not anticipated when different legislations were adopted, courts have undoubtedly recognized the desirability of their formal inclusion within their ambit via judicial recognition. Neither Trade Dress nor copyright law explicitly addresses the legal protection of culinary food plating, although both bodies of law have the potential to be expanded to include food presentation. In actuality, an expansion of Trade Dress to include food plating as distinctive dishes is more plausible than an increase of copyright to protect food plating and its looks. If done carefully and on a case-by-case basis in the courts, this extension, while ensuring community standards, may generate formal IP protection for the culinary industry. As a result, IPR laws must adapt, grow, and comply with providing a solution to this perplexing quandary.

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