Thanksgiving is filled with traditions – sharing what you are thankful for, enjoying family recipes, playing games together, and watching football. Naturally, though, traditions evolve with new ideas. This year, you may think of a better or more creative way to prepare your pumpkin pie for Thanksgiving. Can you protect your new recipe? It depends, and here’s why:

• Copyrights protect original works of authorship fixed in a tangible medium. A degree of originality and creativity is required to have copyright protection. Interestingly, the US Copyright Office excludes a basic recipe from copyright protection for merely being a listing of ingredients with a set of instructions, which does not amount to enough creativity. However, pictures, videos, and storytelling blog posts that may accompany a recipe on a website or within a cookbook can tip the scales of originality and creativity to be eligible for copyright protection. While having protection over these more creative parts won’t stop someone from copying your new pumpkin pie recipe, it may give you enough creative edge to gain popularity and credibility amongst bakers.
• Trademarks are words, phrases, or symbols that identify the source of particular goods or services. For example, you may buy a package of Pillsbury^® premade pie crust to make your Thanksgiving preparations a bit easier. The name “Pillsbury” is a trademark that indicates where your pie crust is from and what quality to expect. Therefore, if you decide to sell your new pumpkin pie to others, you may want to consider selling it under a trademark to establish your brand. Additionally, if you design your pumpkin pie to have a unique shape or design, over time, this unique shape or design of the pie itself could become distinctive enough to become a trademark. That’s what happened with Smucker’s® round, crustless sandwich, Uncrustables®, and Pepperidge Farm’s® smiling fish-shaped crackers, Goldfish® – both have trademarks for not only the product name, but also for the product shape. (See, US TM Reg. Nos. 2883529 and 3290648).
• Patents provide inventors with exclusivity to make, use, sell, offer to sell, and import their invention for up to 20 years. For a recipe to be patentable, it must be novel and nonobvious. It is difficult to meet the “nonobviousness” threshold for recipes as so many new recipes are based on common combinations of ingredients. An unexpected result or particular advantage to the new recipe would be helpful if seeking patent protection. Food-related patents are more common for improvements on the manufacturing process and packaging. While it is unlikely you can get a utility patent relating to an improvement to a family recipe, a unique food shape or packaging could be eligible for protection through design patents.
• Trade Secrets are very popular and can be very powerful in the food industry, as exemplified by Coca-Cola’s formula. To have trade secret protection, your recipe should have economic value for not being known. To maintain trade secret protection, you must take reasonable efforts to keep your new receipt a secret. While trade secrets can be extremely powerful as they do not have an expiration date, reverse-engineering can expose your recipe and cause you to lose these rights.

We hope this gives you something to think about this Thanksgiving as you appreciate the history and innovation behind the foods you enjoy with those that are special to you!

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