Can a drink recipe be patented or copyrighted?
October 25, 2012 8:12 PM Subscribe
I accidentally (and deliciously) created and then named a drink that's catching on at a university and I was wondering if I could copyright or patent its recipe and name.
Thank you.
Copyright is out of the question, as you can't copyright names, and recipes are purely functional. If it was a really innovative drink making technique, you could perhaps patent it.
Trademark would be your most likely protection, if you had a business producing and selling said drink, but you couldn't prevent others from making knock offs with a different name.
IANAL, so take with a grain of salt.
posted by empath at 8:24 PM on October 25, 2012 [1 favorite]
Trademark would be your most likely protection, if you had a business producing and selling said drink, but you couldn't prevent others from making knock offs with a different name.
IANAL, so take with a grain of salt.
posted by empath at 8:24 PM on October 25, 2012 [1 favorite]
Recipes are not copyright-able, but names are trademark-able. You can, at the very least, protect the name if not the contents.
That's why your local pharmacy might have Tylenol right beside their store brand acetaminophen. Identical ingredients, but the name "Tylenol" is trademarked.
See also the classic Simpsons episode where Homer creates the Flaming Homer.
If you think there is a possibility that someone else may profit from the name of your drink, it will be worth your while to find an intellectual property lawyer for a consult.
posted by neksys at 8:26 PM on October 25, 2012
That's why your local pharmacy might have Tylenol right beside their store brand acetaminophen. Identical ingredients, but the name "Tylenol" is trademarked.
See also the classic Simpsons episode where Homer creates the Flaming Homer.
If you think there is a possibility that someone else may profit from the name of your drink, it will be worth your while to find an intellectual property lawyer for a consult.
posted by neksys at 8:26 PM on October 25, 2012
This is why Coca-cola and other companies don't tell you exactly what their recipe is, I assume.
posted by OnTheLastCastle at 8:27 PM on October 25, 2012 [1 favorite]
posted by OnTheLastCastle at 8:27 PM on October 25, 2012 [1 favorite]
Dark and Stormy is a cocktail name that has a trademark, so such a thing is apparently possible. The trademark owner makes Gosling's rum, so it makes sense that they would want to make sure it and not another brand gets used when the cocktail is requested. Better business minds than mine might be able to think of a way to approach the manufacturer of one of your drink's signature ingredients with your recipe and mutually profit, if it is that good!
posted by Wordwoman at 9:13 PM on October 25, 2012
posted by Wordwoman at 9:13 PM on October 25, 2012
If you research the history of the Mai Tai (see: Don the Beachcomber vs. Trader Vic) you'll realize that it's probably in your best interest just to make a post in a public forum - no, I'm not necessarily recommending here - with your drink recipe, its name, and your name for posterity. If it goes nuts and explodes, well, the historians will have something to point at.
That's about the best you can expect.
Get to working on that next cocktail!
posted by komara at 9:59 PM on October 25, 2012
That's about the best you can expect.
Get to working on that next cocktail!
posted by komara at 9:59 PM on October 25, 2012
IAAL, IANYL. I do some IP but it is not the majority of my practice.
For trademarking the name, you need a commercial use. Are you using the name in commerce? Probably not. Did you check the USPTO to see if the mark already exists?
As to the recipe, as previously noted, a recipe is not copyrightable. A recipe *can* be patented, but you are going to need to show the elements of patentable subject matter, usefulness, novelty, and non-obviousness. I think the two big issues would be the latter two: is the drink novel? is the drink not obvious? Novelty is complicated but basically, did the drink already exist anywhere before you accidentally made it? If so, no patent. I suppose a recipe can be novel, but it is hard to think of a drink recipe that no one has ever described or made before.
Obviousness is also a problem. Unfortunately, this is a subjective test. Would a barkeeper or mixologist of average skill use their common sense to see the recipe implicit in all the prior art of mixology? If so, you likely have a problem. Please keep in mind that novelty and non-obviousness are complex; I am painting with broad, gross strokes here.
It is also worth pointing out that even if your recipe is patentable, which I think it is not, the price of patent protection is that your recipe becomes a matter of public record. Anyone could go to uspto.gov to find the recipe for making the Fizzy Holdenjordah. And, your patent is only good for 20 years.
It is for these reasons that the default IP protection for recipes is the trade secret. You don't have to disclose to anyone, and they last indefinitely. Of course, trade secret is not available to you because the recipe is now out in the open and that is probably because you didn't take steps to protect its secrecy. Trade secret, unlike copyright and patent, is a matter of state law so YMMV, but I imagine they are all the same in this respect.
Please share your recipe and its name with us.
posted by Tanizaki at 8:07 AM on October 26, 2012 [2 favorites]
For trademarking the name, you need a commercial use. Are you using the name in commerce? Probably not. Did you check the USPTO to see if the mark already exists?
As to the recipe, as previously noted, a recipe is not copyrightable. A recipe *can* be patented, but you are going to need to show the elements of patentable subject matter, usefulness, novelty, and non-obviousness. I think the two big issues would be the latter two: is the drink novel? is the drink not obvious? Novelty is complicated but basically, did the drink already exist anywhere before you accidentally made it? If so, no patent. I suppose a recipe can be novel, but it is hard to think of a drink recipe that no one has ever described or made before.
Obviousness is also a problem. Unfortunately, this is a subjective test. Would a barkeeper or mixologist of average skill use their common sense to see the recipe implicit in all the prior art of mixology? If so, you likely have a problem. Please keep in mind that novelty and non-obviousness are complex; I am painting with broad, gross strokes here.
It is also worth pointing out that even if your recipe is patentable, which I think it is not, the price of patent protection is that your recipe becomes a matter of public record. Anyone could go to uspto.gov to find the recipe for making the Fizzy Holdenjordah. And, your patent is only good for 20 years.
It is for these reasons that the default IP protection for recipes is the trade secret. You don't have to disclose to anyone, and they last indefinitely. Of course, trade secret is not available to you because the recipe is now out in the open and that is probably because you didn't take steps to protect its secrecy. Trade secret, unlike copyright and patent, is a matter of state law so YMMV, but I imagine they are all the same in this respect.
Please share your recipe and its name with us.
posted by Tanizaki at 8:07 AM on October 26, 2012 [2 favorites]
Mod note: Fairly specific question, please keep answers specific folks.
posted by cortex (staff) at 9:57 AM on October 26, 2012
posted by cortex (staff) at 9:57 AM on October 26, 2012
Response by poster: hi folks.
thanks for the feedback and sorry for the delay.
i decided to just let it slide - i was simply curious.
posted by holdenjordahl at 8:25 AM on November 6, 2012
thanks for the feedback and sorry for the delay.
i decided to just let it slide - i was simply curious.
posted by holdenjordahl at 8:25 AM on November 6, 2012
This thread is closed to new comments.
posted by peanut_mcgillicuty at 8:22 PM on October 25, 2012 [3 favorites]