One factor that should be considered when starting up a new restaurant is the menu. In most restaurants, the menu is the owner or chef’s calling card, which makes each establishment unique with its own recipes. If all restaurants had the same exact menu, there wouldn’t be variety in our dining choices. So, how can restaurant owners ensure their menu stays one-of-a-kind?
U.S. copyright laws can only protect the expression of a restaurant’s menu: the way that the menu’s food and drink options are arranged and any photos you take of those items to include are protected, but not individual names or ideas.
This means that other restaurants cannot copy your entire menu’s layout or photos without your permission. However, another restaurant can serve the same menu items as you—and even under the same names—unless you trademark the names and takes steps to ensure recipes remain trade secrets. With that said, how do you keep your menu and its listed items protected?
Copyright Laws & Restaurants
Copyright is the legal measure of protecting the work of a creator. It gives the creator of a piece the sole right to say how and if other people can use it. Copyright essentially protects others from copying original creative work, so how does this apply to restaurants?
For these venues, copyright laws do not apply to anything except the expression of the menu. This is because the design, arrangement, and photos you take for the menu is essentially your own original, creative work.
However, copyright protection does not extend to the names, ingredients, or description of a menu item, because they are not deemed to have original, creative merit. In addition, copyright law does not protect restaurant trade secrets or special in-house recipes.
Copyright and Recipes
If an author can have a copyright in a published book, why can’t a chef have their recipes copyrighted, too? While a restaurant menu’s layout can be enforced by copyright laws, the recipes are a different story.
A recipe is a reflection on both the chef and the restaurant’s reputation; it becomes an item of property for the owner of the restaurant. But, the only way it has a chance of being protected by copyright law specifically is if it is documented in a fixed, tangible form, such as within a cookbook.
However, copyright law would only protect the expression of the work, similarly to a restaurant’s menu. It would not extend to the individual recipes presented.
Other Ways to Keep Menus and Recipes Protected
Although copyright law can only go so far to protect your restaurant’s menu items and recipes, there are some things you can still do to ensure they’re safe.
For one, a chef’s recipes are protected as long as there is no documentation of the recipe at all. If it remains in the mind of the chef, it will belong to the chef. In addition, since the restaurant owner sometimes owns the recipes that are created by a chef and vice-versa, it is a wise notion to have a contract between yourself and the chef that dictates the ownership of all recipes created while under your employment.
Also, if you want to keep new, successful recipes as a trade secret, you can also have your employees and staff sign a nondisclosure agreement that legally protects any information about your business—including your recipes—from falling into competitors’ hands.
Intellectual Property Protection & Restaurants
You will spend a great deal of time and energy in developing the style, look, and menu at your restaurant. It takes creativity to decide exactly how you want your restaurant to promote your menu offerings, from the ingredients you get from a supplier to the plates and glassware that are used in the dining room. With all the work you have put in to have a successful and unique restaurant, you will want to protect it.
With a new restaurant or bar, it is important to protect the intellectual property of the establishment. This relates to creations of the mind, and it is vital for restaurant owners, managers, and chefs to determine what intellectual property you have and the value of it. It can be a time consuming and costly approach, but having an inventory of what you have that makes your restaurant unique can help compile what intangible property is worth protecting.
If a restaurant wants to convey to everyone that they consider their menu property worth protecting, they should consider adding a copyright protection line at the bottom of the menu. It indicates a forewarning to everyone that the restaurant intends to protect that intellectual property.
There are four ways in which intellectual property can be protected for a restaurant.
- Trademarks – The Patent and Trademark Office (USPTO) defines a trademark as something that distinguishes goods or products from those of someone else. The name of the restaurant, its logo, and the names of menu items are all things that are protected by trademark law.
- Copyrights – Copyright law protects menu designs, websites, and marketing material. It preserves original works that are created. A recipe is difficult to protect because it lacks the literary expression unless the recipes are in a cookbook.
- Trade Secrets – The most important way to protect yourself and your property in the restaurant industry is to know and understand trade secrets. Trade secrets include recipes, vendors, and customer lists, and the methods the kitchen staff uses to operate the kitchen. To enforce trade secrets, you would have to use nondisclosure agreements with anyone who comes into contact with the restaurant’s secret recipes.
- Patents – A patent is a legal protection that will prevent others from using your original idea. If someone else uses your patented concept, you have the right to sue them. Although this is not common with restaurants, there may be some items you have, such as a self-made vegetable cutting device, that you want to keep as your idea.
Can Items on My Menu Get Me Sued?
You should consider your decisions carefully when designing your menu. If by chance, you use a name for a particular item that is trademarked, you could be headed for a copyright infringement lawsuit. This is what the insurance business calls advertising injury. Your restaurant can be sued for damages if:
- Your work or words infringe on someone else’s copyright or trademark.
- Spoken or written slander or libel is present.
- Your work and words invade the privacy of another person through advertising.
- You plagiarize someone else’s advertising ideas.
When you are developing your menu, you should do some research before you decide on a name for the dish or drink. You may want to hire an attorney to review your menu and advertising material before you make it public.
In addition, it is always a good idea to purchase general liability insurance as an added protection for your business. General liability insurance can save you years and thousands of dollars out of pocket in legal fees. The advertising injury cover can help pay:
- Attorney fees
- Settlements
- Judgments
- Other court costs relevant to a case
Conclusion
When you open your restaurant, the last thing you probably want to worry about is copyright laws and hoping a competitor doesn’t steal your menu ideas. However, because copyright laws are limited, the best chance you have to ensure your recipes and menu items are protected is to pursue trademarks and have your staff sign the appropriate nondisclosure agreements as needed. Finally, to prevent the issue of infringing on other restaurants’ copyrights, be sure to be diligent in your research before designing your menu and offerings.
References:
https://www.legalmatch.com/law-library/article/copyright-law.html
https://www.nolo.com/legal-encyclopedia/can-you-protect-a-recipe.html