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30 October 2015CopyrightSean Ibbetson

Protecting a chef’s secret recipe

With the UK’s Wednesday night TV viewing switching seamlessly from the final of cookery show “The Great British Bake Off” to the new series of Alan Sugar’s hunt for his next business partner on “The Apprentice”, some people’s thoughts will possibly be dominated by considerations of how a chef could rely on the law of confidence to protect his or her recipe as a trade secret.

For starters (pardon the pun), demonstrating one’s recipe by cooking it on a TV programme will almost certainly destroy any chance of protecting it as a trade secret.

To be protected, the law requires the information (in this case, the recipe) to be kept confidential. This does not require the information to be known only to one person, but if the information is imparted to another person this must be done in circumstances which import an obligation of confidence, through a non-disclosure agreement with a licensee, for example.

Cooking your recipe on “The Great British Bake Off” will clearly not import any obligation of confidence on the millions of viewers. The secret (if there ever was one) will probably be out.

“The situation might be different in a restaurant’s kitchen, provided that the confidential information is shared in a manner which protects its confidentiality.”

The situation might be different in a restaurant’s kitchen, provided that the confidential information is shared in a manner which protects its confidentiality. In the 19th century, for example, the owner of the recipe for “Morrison’s Universal Remedy” successfully stopped his business partner’s son from making any medicines according to the secret formula, because the recipe had been shared with his father on the basis of an undertaking that it would be kept confidential.

A chef could potentially share a secret formula with a number of people in his or her kitchen or food production plant, provided that everyone who receives the secret is bound by some kind of obligation to keep it that way.

It is also essential that the formula or recipe is sufficiently certain, otherwise the court is likely to refuse to protect it. A recent claim for breach of confidence against the maker of Levi Roots’ Reggae Reggae Sauce failed for many reasons, and the courtpointed out that the recipe—which was allegedly secret—was “riddled with imprecision”.

The recipe suggested “2 to 3lb of onions”, “150ml of soy sauce/browning”, and some unspecified amount of “water to dilute to gain the required thickness”. No two chefs following the recipe would end up with the same tasting sauce. It also didn’t help the claimant that the recipe was provided to the court without any reservation of its confidentiality, and that the ingredients would have been listed on the packaging had the product been sold to the public, with only the quantities and method potentially remaining secret.

A chef does not necessarily need to go to the same extreme lengths as Coca-Cola to protect his or her secret formula. However, it is not advisable to rely on an imprecise formula, or ever to impart the information to others without taking precautions to maintain the recipe’s secrecy. Finally, it’s certainly not a good idea to broadcast your supposed secret to the nation on “The Great British Bake Off”.

Sean Ibbetson is an associate at  Bristows. He can be contacted at: sean.ibbetson@bristows.com

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