05 January 2012

Is there any IP in Recipes? Reflections on the Reggae Reggae Case

Most of us will have eaten so much over Christmas that food is likely to be one of the last things on our minds. Nevertheless, I was put in mind of food yesterday by two things. First, a Linkedin connection with Aunty Bernadette George, the owner of "Smokey Bites" whose African and Caribbean catering service is famous throughout London and beyond. Secondly, I read Judge Pelling QC's decision in Bailey and another v Graham and Others [2011] EWHC 3098 (Ch) (25 Nov 2011), "the Reggae Reggae Court Case" as the Levi Roots website put it.

Aunty Bernadette and Levi Roots are  both known to the legal profession though, in Aunty Bernadette's case, entirely in a good way. One of her testimonials comes from one of my instructing solicitors and her list of customers includes the Middle Temple and "De Silver Chambers" which I assume to be Argent Chambers (the chambers of Herendra de Silva QC).

The Reggae Reggae court case was decided entirely on the facts.   The judge put the claimants' case as follows:
"The claimants' case is that the Product is derived directly from the first claimant's own unique and secret recipe for jerk sauce that they maintain was supplied by the first claimant to the first defendant only following an agreement between each of the claimants and the first defendant that they would together exploit the commercial opportunities represented by the first claimant's sauce and would divide the profit to be derived from that exploitation on an equal basis. The claimants' only pleaded case is that following the making of this alleged agreement the first claimant showed the first defendant how his sauce was prepared and what ingredients are used – see Paragraph 11 of the amended Particulars of Claim [1/5] and Response 46 to the Part 18 Request for Further Information in relation to the Particulars of Claim [1/25]. It is alleged that thereafter the first defendant sought to exploit the first claimant's recipe for his own benefit in breach of the alleged agreement. If and to the extent there was no agreement as alleged, then the first claimant alleges that the information concerning the first claimant sauce was imparted to the first defendant in circumstances that attracted the duty of confidence and that the alleged exploitation by the first defendant of the first claimant's recipe thereafter constituted a breach of that duty."
His lordship found himself unable to accept the evidence of either the claimants or the defendants and his job was not made any easier by the paucity of contemporaneous documents. As the burden of proof was on the claimants and as they had failed to discharge it he found for the defendants.


There was only one bit of law in the case and that was towards the end when he considered the claim for breach of confidence. The judge directed himself correctly at paragraph [102] that "in order to succeed, the first claimant must show that that which he claims confidence in (his recipe) was imparted to the first defendant in circumstances importing an obligation of confidence - see Coco v. A.N.Clark (Engineers) Limited [1969] RPC 41 at 47." Having found no agreement between the parties on the contract claim he concluded that there was no prospect of the claimant's satisfying that requirement.

However, and this is where the interesting bit starts, Judge Pelling QC questioned at paragraph [104] whether the recipe on which reliance was placed by the claimants is sufficiently certain to have the necessary quality of confidence about it to found a claim for breach of confidence.  He set out his concerns in the following paragraphs:
  1. .".................... It is sufficient to note that the recipe is riddled with imprecision as for example "2-3 lbs of chopped onion …". This recipe was to prepare 25 litres of sauce. Whether 2lbs or 3 lbs of onions are used will make a difference and perhaps a significant difference to the taste of the end product. Similar points can be made by reference to the fact that the recipe does not state whether the seeds should or should not be removed from the Scotch Bonnet peppers, refers to 5-7 whole chopped garlic which is as imprecise as the specification in relation to onions and is significant for the same reasons. Contrary to what the first claimant considered to be the position, soy sauce and browning are different substances with different flavours and different properties. However, the recipe says merely that "150 mls of soy sauce/browning …" should be used. "All Purpose seasoning" is specified but the evidence shows that different proprietary brands of such seasoning contain different herbs with different flavours in consequence.
  1. However there are two points which to my mind fatally undermine the notion that this recipe is capable of supporting a claim for breach of confidence. First, it provides that the cook should add "… water to dilute to gain the required thickness and strength …". No two chefs using the recipe are likely to get the same outcome following a direction of this sort. Some will produce sauce that is runnier and/or weaker than others. The only methodology specified is to blend without specifying for how long or to what consistency. It is then said that the ingredients should be mixed together with ketchup and then stir in water and "… add the vinegar, keep stirring all the time, keep tasting until desired taste is reached.". This emphasizes what must now be obvious that there is nothing special either about the ingredients or the methodology of making them into a sauce what matters is the strength or weakness and/or taste of the sauce which is a matter for individual preference to be achieved by adjusting the contents of the product.
  1. The recipe contains no provision concerning cooking although the first claimant maintained in the course of his evidence that the sauce was cooked – see T1/143-144. If it is to be cooked (and Ms Ballantyne thought it was [T4/138] but Mr. Sadiki Bailey thought it was not [T3/79]) the evidence was (and it is in any event obvious) that the effect of cooking would be to alter the flavour of the end product. If the first claimant is correct and his sauce is to be cooked then this introduces a further random element because the recipe is entirely silent on whether the sauce should be cooked and if so for how long and at what temperature. On the first claimant's own evidence the outcome could be variable. According to him, when he was in hospital in 2004, he first supplied his recipe to his chef and then to his son. The chef was unable to create a sauce from the information supplied or at any rate one that was useable. That was why what he maintains is the same information was supplied to his son Damian. There is every reason to doubt the accuracy of this evidence. The claimants' case as to this incident had changed in material respects. But that does not matter for present purposes. If a presumably competent professional chef cannot make a sauce from the recipe that replicates what the first claimant's sauce was like then the recipe is obviously wanting in particularity.
  1. Finally there is an added difficulty. The ingredients used are completely standard and would have to be listed on a sauce that was sold to the public as such. Thus the confidence would be capable of existing only in the quantities used and the methodology of preparation. Those elements are as I say too imprecise to enable the repeated preparation of a product to a consistent standard. In those circumstances I do not consider this recipe is sufficiently well developed to be capable of being confidential information."
Finally, the judge doubted whether the recipe was ever secret in any real sense at all. It was on the first claimant's own case supplied to his chef in 2004 as well as to his son. He took no steps to ensure that when he prepared the sauce he was on his own. He made no attempt conceal what he was doing from two of the witnesses. He was on his evidence happy to demonstrate the making of his sauce at the alleged demonstration not merely to his supposed partner the first defendant but also to a Mr. Hoffman who was not only an experienced chef but also the proprietor of a rival cafĂ©. No confidence was claimed in the recipe when it was set out in the response to a Part 18 request.  

The failure of the claim in confidence has made me ask myself what intellectual property could possibly subsist in a recipe. 

Copyright, perhaps, if the recipe is original. My late Aunt Nelly, who studied domestic science in what later became Manchester Metropolitan University's law school and was an excellent cook, wrote down hundreds of recipes for such delicacies as Lancashire hotpot like the dish in the picture. But were any of them original? If they were dictated by her teachers any copyright subsisting in the recipe would belong to them or more likely the domestic science school that employed them.   My late aunt was born at the beginning of the last century so the relevant statute would have been the Copyright Act 1911 s.5 (1) (b) of which would have applied. Another problem with copyright is infringement.   Making jollof rice (one of my favourites and a dish supplied by Aunty Bernadette) to a recipe is not one of the acts restricted by s.16 (1) of the Copyright, Designs and Patents Act 1988.

What about performers' rights? After all since my dear friend @Msnoeticat kindly restored my TV reception following the digital switch over I have noticed an enormous number of cooking programmes on telly. Certainly there is copyright in a broadcast but is a cooking demonstration a performance within the meaning of the Act? S.180 (2) defines a "performance" as a
(a) a dramatic performance (which includes dance and mime),
(b) a musical performance,
(c) a reading or recitation of a literary work, or
(d) a performance of a variety act or any similar presentation,
which is, or so far as it is, a live performance given by one or more individuals;
If a chef is a performer then why not a footballer, a schoolmaster or even the poor so and so on a help desk. Barristers even!

I suppose confidence could subsist in a recipe. I once won an interim injunction for a company making glazes to restrain one of its R & D personnel from joining a competitor on the grounds that the recipes for the glazes were confidential information. But these were very much more precise than the sauce recipe in the Reggae Reggae case and they were cooked up in applicant's R & D department by chemists with PhDs. The recipe for Coke or Chartreuse might fit the Pelling criteria but how much else?

That leaves only trade marks if you have a sign that is capable of registration but, remember, it must be put to genuine use within 5 years of registration otherwise it can be revoked under s.46 (1) (a) of the Trade Marks Act 1994.

Just before I go, Auntie Bernadette has asked me to tell all my friends which include you, gentle readers, that she has opened a restaurant at called "Across Continents" at 177 Streatham High Road, London SW16 6EG. You can book a table on +44 (0) 203 441 6795 and yes she does serve jollof rice at an unbelievably reasonable £6.80. I wonder whether she could be encouraged to open a branch in the North.

No comments: