Culinary Copyrights: The Legal Landscape of Food Design Protection in Italy

Companies that heavily invest in innovation, research, and development – including in the food sector – have always faced the challenge of protecting their intellectual creations. Whether it is devising the best way to protect the unique shape of an oil bottle, the distinctive silhouette of a chocolate bar, the original packaging of a crisp bag, or even the layout and concept of a restaurant, protective measures are crucial for guarding against not only slavish imitation and misappropriation of goodwill by association (lookalikes) but also unfair parasitic competition.

The primary and most straightforward method for protecting an innovative product or manufacturing process rests on the laws and regulations governing inventions. These are typically defined as “original solutions to technical problems”.

Specifically, patent protection for an invention, whether it is a product or a process, grants an exclusive right for a period of 20 years. This exclusivity aims to prevent third parties from utilising the invention or to govern its use through agreements and licenses.

For an invention to be eligible for patenting, it must fulfil the following criteria:

In the food sector, patents extend beyond additives, aromas, and extracts. They can also cover new food products or processes for the production, transformation, packaging, and storage of food products. Furthermore, patents in this sector may pertain to food supplements, foods designed for specific medical conditions, and foods fortified with added substances.

A few “recipes” have also been granted patent protection. For example, Italian patent No 1408479, regarding a “Process for the preparation of a food product constituting a base that is intended to be processed at the time of consumption”; European patent No EP2382866 (A1), relating to a “Process for the production of biscuits”; and European patent No EP1695635, regarding a “New type of condiment for pasta, rice and the like, particularly suitable to meet children’s preferences and having a particularly balanced dietetic-nutritional profile”.

Any company information or technical-industrial know-how that is under the legitimate control of its holder and meets the following requirements is eligible for trade secret protection:

The lawful holder of such information and know-how is entitled to prevent third parties from acquiring, disclosing to third parties, or using said information without permission, except under the following conditions:

In the food industry, many product recipes have remained trade secrets for decades, insofar as they align with disclosure requirements under applicable laws and regulations. These include rules related to labelling and food and drink safety. Examples range from Coca-Cola’s legendary recipe to McDonald’s Big Mac “Special Sauce”. Maintaining such secrets requires a calculated business strategy that, from its inception, encompasses both internal procedures, such as employee training and non-disclosure agreements, and external protocols to mitigate the risk of unauthorised disclosure or use.

Recipes may also be eligible for copyright protection. Article 2 of the Italian Copyright Law lists the categories of works that are eligible for protection, including literary works. Since recipes can be characterised by creative expression, even marginally, in their outer form, they may fall within the scope of literary works.

For instance, the Court of Milan (Judgment No 9763 of 10 July 2013) granted copyright protection to artisan recipes for cured and cooked ham that were published on a website, ruling against the author and publisher of a book who had reproduced these recipes without permission. Other notable judgments have extended copyright protections to:

This is an evolving area of law that will likely see further development through new and more comprehensive court decisions. Given the growing significance of food design in the wine and food industry, as well as in a culture with a longstanding focus on food and nutrition, this topic will likely continue to attract considerable attention.