primarily on attribution to the original creator by providing words such as “adapted from” or “inspired by”. Chefs do respect these three general principles, namely punishing infringers by a refusal to provide further information and by lowered reputation in the community. It is not common for chefs to invoke copyright protection, except in relation to cookbooks, e-cookbooks, magazines, e-magazines, photographic works or audiovisual works of all types. Trade secrets play an important role in the protection of culinary creations. Trade secret (harmonized in the EU) is intended to protect information (including formulas, patterns, compilations, program devices, methods or processes) which grants economic value (actual or potential), from not being generally known and is subject of efforts that are reasonable to maintain secrecy (see Article 313 ff. CPI). To be considered a trade secret, the subject matter, including methods, processes or formulas of recipes, must have an independent economic value and there must be means put in place by the creator or proprietor to protect secrecy. Many well-known food companies rely on trade secrets to protect their recipes or formulas (e.g., Coca-Cola recipe, KFC´s chicken, MacDonald’s Big Mac “special sauce”). But trade secret protection is also used by smaller restaurants claiming trade secret infringement by ex-chefs and employees. Reputed chefs, relying on gastronomic precedents belonging to the culinary public domain, tend to keep some ingredient or some combination of ingredients, as well as manipulation of them secret, adding their personal touch to the popular recipe or dish. That way they can maintain a culinary edge over their competitors. Trade secret protection may be very useful for smaller-scale restaurants and for individual chefs (or cooks) because the barriers to obtaining protection are relatively low, especially as compared to obtaining patents. However, there is very limited legal protection once the secret becomes known. Secret information can be revealed through inadvertence or even independent discoveries, and improper misappropriation may be difficult to prove. That’s one of the reasons why nondisclosure agreements and fiduciary duties are so important. Another problem in relation to trade secrets protection has to do with the growing potential reverse engineering of recipes, given the new advancements in technology, namely in Generative Artificial Intelligence, which may be used in deciphering the exact ingredients and proportions that were used.106 106 With more detail, BONADIO, WEISSENBERGER, “Food Presentation…”, cit., p. 17; ROCHA, “The Mondrian Cake…”, pp. 177-178. 258 MARIA VICTÓRIA ROCHA
RkJQdWJsaXNoZXIy MTE4NzM5Nw==