MexxaMixx now has an established brand and sales are increasing (both online and at various specialist food stores around the South East). Thomas and Steven realise that there is real value in both the brand name and the sauce recipes. They approached us to find out how the brand and recipes can be protected to stop anyone from copying them.
We looked into the possibility of patent protection for the recipes. A valid patent would last for 20 years and, during that time, would give MexxaMixx monopoly rights to use the patented recipe. To be patented, a recipe must be new in the sense that it is not publically known. In addition, that recipe must not be obvious to a knowledgeable, experienced and skilled chef. This requirement is known as the need to show an “inventive step”.
We talked in detail with Thomas and Steven about the various recipes and the manufacturing process. As the sauces are made from known ingredients and do not involve a new method of preparation, we determined that the recipes were not patentable due to the lack of an “inventive step”.
However, many famous foods and drinks (such as Coca-Cola and Heinz Baked Beans) are not protected by patent and, instead, rely on trade secret protection. The advantage of trade secret protection is that a recipe is not disclosed on the public register (as would occur in the case of a patent).
The key to maintaining a trade secret is to limit disclosure of the recipe to only that which is absolutely necessary by, for example, carefully vetting any potential recipients of information and providing controlled hard copies. Where disclosure is necessary, we advised MexxaMixx to ensure that there is a non-disclosure agreement or confidentiality agreement in place. All employment contracts should also contain suitable confidentiality restrictions. We provided MexxaMixx with a suitable confidentiality agreement and advised that it should be entered into by a recipient before any information is disclosed.
Trade mark protection was available for the name “MexxaMixx” and we assisted the company in successfully registering a Community Trade Mark. MexxaMixx now had exclusive use of the name throughout the EU in connection with cooking sauces and other food products.
This article was first published in the Sevenoaks Chronicle on 5 March 2015.