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Innovate Magazine

INNOVATE is the online magazine by and for AIPLA members from IP law students all the way through retired practitioners. Designed as an online publication, INNOVATE features magazine-like articles of 500-1,500 words in length on a wide variety of topics in IP law.

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Food Sculptures and the Art of it

By: Dr. Mohan Dewan

 Food was once a necessity. Food was then, a delicacy. Food is now, an experience!

-Dr. Mohan Dewan

First impressions are most certainly lasting impressions. This proverb is applicable to a lot of things, but it has new-found importance in the food and hospitality industry. A dine-out evening at a restaurant not only involves food that is ‘healthy and tasty’, but also food that looks beautiful and is plated in some intriguing manner. It is a traditional belief that food is not only ingested, but also consumed through the eyes, nose, ears and touch (are you also thinking of Sizzlers?!). Such theories have made chefs and hoteliers all around the world innovate and create different styles and methods of presenting everyday dishes in unique and unprecedented ways. This article explores the possibilities of protecting intellectual property generated from the creation of dishes in India and the need of a uniform framework for the same.

Our intellectual property laws have developed a lot over the past few decades. Gone are the days when the general conception that IP is ‘copyrights for books’ and ‘patents for inventions’. Today, so much as a coined word for a food product (for eg: “Frappucino” for cold coffee) can be protected under the trademark law. Something as simple and basic as the manner of folding a paper packet for selling tobacco can be protected under patent law and something as unitary and basic as a circuit board can be protected under SIC/ Layout Design laws. Thus, at each step where you can add creativity, either scientific or artistic, you are entitled to IP protection, thanks to the advanced and exhaustive IPR framework.

Food plating or food sculpture, as it is popularly referred to, is as much a science as it is a skill to be honed. Chefs all over the world are sought after and known for their self-developed culinary skills and presentation styles. World renowned chefs such as Gordon Ramsay, Thomas Keller and Heston Blumenthal, Sanjeev Kapoor, Vikas Khanna etc., all have been involved in creating newer and newer versions of conventional dishes. The IP rights of such chefs, who take extra efforts to bring out unique dishes and food-combinations, need to be protected with the same zest and strictness that is adopted for protecting a painting.

Food plating is an unconventional art and therefore it would be interesting to determine the type of IP under which it will be protected. The photographs of dishes will obviously be protected under general copyright laws for photographs. Recipes per se, cannot be copyrighted. The law is pretty well settled in this regard. However the applicability of the law relating to the actual freshly made “Dishes” per se is a question one must ponder upon.

Dewan Food Group 1

In India, the Copyright Act, 1957 under Section 2(c) defines “artistic work” as:

2(c) “artistic work” means,—

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a work of architecture; and

(iii) any other work of artistic craftsmanship

A sculpture is further defined as:

2(za) “work of sculpture” includes casts and models

Food plating is to chefs, what brands are to corporations. Food presentation will therefore fall within the definition of artistic work and work of sculpture. If such presentation is original it will be eligible for copyright protection. Copyrighting a dish will help in creating an exclusive association between the chef and his dish. It will also give him/ her right to restrain other chefs/ hotels/ restaurants from copying the manner in which he/ she presents the dishes.

Though various jurisdictions over the world have different takes on protecting the IP rights in dishes (For example design patent in the US), there is no predefined detailed intellectual property framework for protecting a chef’s freshly made dish per se in any of the jurisdictions, be it Australia, India, US, EU etc.

Though various suits and ‘food-fights’ between chefs, hoteliers etc. over various dishes have generated an awareness about the urgent need for protection of freshly prepared dishes under IP, a uniform legal practice in this regard is yet to be manifested. For example, in the case of Powerful Katinka, Inc. v. McFarland, 2007 WL2064059 (S.D.N.Y. 2007) et al, 07 Civ. 6036 (SAS), a restaurant owner and chef sued her ex sous chef for starting a restaurant for copying the look and feel of her restaurant along with its signature dish- “the Ceasar Salad”. The case had stirred a huge debate in the food and hospitality industry, but there was no ruling in this regard. It was ultimately settled amongst the parties with certain undisclosed terms. While some chefs find it important to protect the intellectual property in dishes, it has been reported that some chefs like Thomas Keller, would be rather uncomfortable to collect royalties. Keller’s signature Cornets are known for their elitist qualities at New York’s ‘Per Se’ and ‘French Laundry’. However, various other restaurants and food joints are seen adopting the famous cornet dish and its improvisations.

In India, design protection cannot be granted to food dishes as the definition of a ‘design’ requires that the subject article be created using an industrial process.

Food Plating is associated with the artist’s skill and expertise of sculpting out a uniquely presented dish from an ordinary dish and therefore cannot be associated with an industrial process. There are no design registrations with respect to dishes per se, even though those related to the manner of wrapping a croissant, preparation of cakes etc. are present.

Dewan Food Group 2

Photo Courtesy: We thank Malaka Spice for sharing the photographs of these beautiful dishes.


A stalwart in the Indian IP arena, Dr Mohan Dewan is the dynamic head of R K Dewan & Co with over 50 years of experience in Intellectual Property practice -both contentious & non-contentious. A registered Patent & Trademark Attorney, Dr Dewan is also an exceptional trial lawyer. An expert at Indian Trademark Law, Dr Dewan oversees infringement, passing off and anti-counterfeiting actions for clients across India.
From 1988-1993, he headed the IP Law department of the University of Natal in South Africa where he also taught private international law.
He has drafted and obtained over 8000 patents in nearly every technology area from Life Sciences, Molecular material science to Engineering to Software and Electronics & Telecommunication and Space Technology. His areas of expertise also include commercialization including negotiating technology transfers. Frequently invited as a speaker at conferences, he is passionate about teaching and conducts training workshops for IP office examiners, judges, corporates, government entities & academic institutions.

 

 

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