Not many people take their cocktails as seriously as Eben Freeman, a famous New York based mixologist. Freeman is most famous for his smoked-infused-Coke and bourbon cocktail (The Waylon), which involves smoking cola syrup over cherry-wood sticks. Another technique he has pioneered is fat washing, which involves infusing the spirit with bacon prior to mixing. Frustratingly for Freeman, this technique has been used by other bartenders and Freeman has found out the hard way that he has no option but to guard his secret recipes as closely as possible.
The Options
Mixologists in the UK face similar issues to those in the USA. Unfortunately, there is not much bartenders can do to stop others from copying their cocktails.
The different categories of intellectual property (in the UK) are as follows:
1. Trade marks:
This gives the owner the exclusive right to use the mark to identify goods or services and to prevent others from doing so. A mark means any sign which is capable of distinguishing the goods or services of one undertaking from those of another. It may consist of words, designs, letters, numbers or the shape of goods.
A sign is something which can be apprehended by the senses, such as taste or smell, but it must be capable of being represented graphically. For that reasons, a trade mark may allow a mixologist to protect the name of a cocktail or drink.
2. Passing Off
This allows a person to protect the goodwill or reputation it attaches to goods or services by association with an identifying mark or "get-up". It prevents misrepresentation by another person that his goods or services are those of the owner of the goodwill, for example. Like a registered trade mark, this will not protect a cocktail recipe.
3. Copyright
Copyright gives the right to the owner to prevent others copying their work. It includes works such as literary, musical and dramatic works, sounds recordings and films.
A recipe (once published in the UK) will automatically be protected as a literary work. If someone were to copy and publish these recipes, the copyright owner could enforce its copyright against them. Take London's famous Savoy cocktail book, for example. This recipe book held copyright when it was first released in 1930 and is still protected to this day. Unfortunately, creating a cocktail from a recipe will not be infringement of that copyright. Indeed, the purpose of publishing to book was to enable people to do so.
4. Registered Design Right
This protects the original design of a product (or a part of a product) in terms of the appearance resulting from it features. Although a cocktail could be a product, its appearance will be identical to that of many other cocktails so this right will not apply. This might be of use, however, for protecting the design of a cocktail glass.
5. Unregistered Design Right
Like Registered Design Right, this protects the design of any aspect of the shape or configuration of the whole or part of an article (not necessarily a product). The main difference between the two rights is that Unregistered Design Right allows the internal of that shape or configuration to be protected. Again, a cocktail recipe could not be protected, but an original cocktail glass design may.
6. Patents
This is a monopoly right to use and exploit an invention which can be used industrially, such as mechanical apparatus and electronics or new production methods and processes.
Even if a barman managed to create a new, inventive process to produce a rum-based concoction, it would not be applicable for industrial use.
The best bet for all budding cocktail inventors is the law of confidence, i.e. secrecy. Don't write down the recipe and keep it confidential. Think Coca-Cola - it is rumoured that only two executives know the recipe and both cannot take the same plane in case of a crash and the secret is lost. If a bar wants to hire you or a manufacturer to sponsor you and you need to divulge your secret recipe, although perhaps a drastic measure, make them sign a non-disclosure agreement.
Please see this month's special offer on confidentiality agreements (NDAs) at the bottom of this newsletter. If you would like advice on any aspect of commercial or hospitality sector law, please do not hesitate to contact us on 0207 440 2540 or email us at enquiries@fortunelaw.com.
