Protecting Original Food Designs Is Easier and More Affordable Than You May Think

Chefs bring so much talent and creativity to their art. Food presentation is often over the top. The chef’s hard work deserves protection from copycat competitors and he or she deserves to both control and profit from its use. The chef also deserves credit for being the creator. There are stories about a small Mom and Pop shop coming up with something original that gets a lot of buzz and a loyal following. The next thing you know, there is a small franchise chain popping up around the country doing the same thing and making more money than the originator by riding on the originator’s coat tails.

These same principles apply for food that is manufactured. If a manufactured food has a particularly distinctive and creative shape or design, it is also worthy of the same protections. Who wants to walk through the dollar store and find cheap versions of his or her product that do not measure up to the same quality? That dilutes the reputation of the creator and his or her product. More importantly, his or her design is making someone money, and it is not him or her.

There are two areas of the law that can provide options for protection against use of the food designs by others and to be able to profit if anyone does use the original creative design. The first is design patent protection and the second is trade dress protection. Design patent protection offers an easier and cheaper route in most cases so let’s explore that route.

We don’t often think of food designs as inventions, but at their core, they really are inventive works in many cases. It is possible to obtain a patent on novel food itself, and processes for making food, but for this discussion, we will focus on the original design aspect of food. When does a chef who has created a signature design for his or her food presentation consider applying for design patent protection? At the outset, protection is only practical and valuable on a repeatable design that is created over and over. A signature item that you want to be the only source of or can get royalties from anyone else wanted to use the original food design.

What is an invention? Patent law defines an invention as any art or process (way of doing or making things), design, or any new and useful improvement of these things. To qualify for a patent monopoly on your food design invention, it has to be both novel and non-obvious. It also has to be aesthetic and ornamental and not purely functional. Non-obvious means it is not a common combination of elements that another chef was likely to use in the same way. It can be hard to get a handle on where that line in the sand is, but for simplicity, let’s say it is not routine and common type things you are doing. They are truly unique in textures, colors or contours (color being the least important of these).

Let’s look at a few food designs that have been patented to get a feel for what is considered “non-obvious.” As you will see, the threshold is not high. Here are some protected “pretzel cracker” or “pretzel thin” designs:

pretzel illustrations

And here are some taco shell designs:

taco shell illustrations

Think you have a food design that qualifies for protection? Getting a design patent is relatively simple and affordable for the 15 years of protection you will be granted. Your budget will be $1,000-$5,000 depending on your service provider, most cases falling in the middle around $2,500-$3,000. You will need 5-10 patent drawings depicting your food design invention. To get these done, you’ll need good quality pictures of your food design, several from each side. Think of the food design as a cube (ex. dice) and take a picture of each side. Giving these to a patent practitioner will enable him or her to easily prepare your patent drawings and application. The patent typically takes 12-18 months to make its way through the process.

Investing in a design patent also has some other business advantages. It will provide an opportunity for free media exposure by being featured in online and print articles looking for something innovative. You can link back and to the articles, likely improving your search rankings over time. You may even get on TV or a video blog. That press is worth more than the same money invested in an ad campaign or social media content. On top of the media content exposure, you will be able to claim you are at the forefront of innovation with patented products, something that will not only increase sales, but also increase interest or confidence by investors. It is an asset that can be pledged as collateral if you seek financing.

As you can see, the only downside is the money it costs to apply. Think of the “street cred” you can get and how great that will looked framed on your wall.