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Trade Secret Recipe Cracking & Selling
Have you ever so loved a restaurant dish, say a particular soup or desert, that you wished you knew what went into it so you could cook it yourself at home? Did you try to get the restaurant to tell you the ingredients and how it was made? Did they? Alas, probably not.
Well, Todd Wilbur had this same wish to know, and he did something about it. Through careful experimentation has successfully re-created hundreds of famous restaurant recipes, and now offers them for sale on his own web site! Is this legal? What's at stake (pun intended) here? Is Todd one quiche away from the ol' graybar hotel?
This recipe cracking question is really about the kind of rights a restaurant has to protect its secrets and the kind of rights a person like Todd has to independently re-create a dish or an entire meal. We know that a safe cracker out to rob money and valuables is wrong 100% of the time but what about a recipe cracker? What makes the difference between cracking a steel box to get its loot and cracking a formula to re-create it?
We all understand that money in a safe is something tangible, and if the safe cracker gets it, the owner loses it; in our legal system things like money, pencils, and cars are known as tangible property. Everything in your dresser or house, including your desk and house, is tangible property. On the other hand, a business secret, like a recipe, is an example of something different; it is a type of intellectual property. Patents, copyrights, and trademarks are examples of other types of intellectual property. A business secret is usually known as a trade secret.
Unlike the tangible property in some bank's safe, both the restaurant and Todd (and all of us) can possess the very same recipe at the very same time.
The laws about trade secret intellectual property show a balance of rights between the creator and anyone else. In general (and this is NOT legal advice here), Todd (and anyone else) has the right to independently recreate a restaurant recipe and use it however he or she wishes. But, that right to re-create does not mean Todd (or anyone else) can spy in the kitchen, or run off with the recipe book!
A copyrighted story by McClatchy-Tribune Newspapers explains how Todd Wilbur has figured out how to make P.F. Chang's lettuce wraps and more than 150 other recipes from places like Applebee's, Olive Garden, Red Lobster, California Pizza Kitchen, KFC, Chili's, and The Original Pancake House. He's even published these recipes in books (Top Secret Restaurant Recipes 1 and 2). Todd has told his story on The Oprah Winfrey Show, Live With Regis & Kathie Lee, and Good Morning America. And, most amazing of all, he sells some 450 individual recipes sort of like iTunes tunes, for 79 cents each on his website. Since August 2005, according to the McClatchy-Tribune story, he has sold 100,000 recipes, one at a time, in addition to books he sells. Web download favorites? Todd says the number one download recipe is Red Lobster Cheddar Bay Biscuits, followed by Olive Garden Pasta Fagioli, Mrs. Fields Chocolate Chip Cookies, and KFC coleslaw, which together sounds like most of the food pyramid, at least the best tasting parts.
But, if you buy a recipe from Todd, either by his web site or his books, can you resell it? Well, no. So how does that make sense? The restaurant creates a recipe, and sells a meal; Todd re-creates the recipe, and sells the recipe. You buy that recipe and can't sell it? The puzzle is answered by understanding the different forms of intellectual property involved here. And, you need to understand that you didn't actually buy the recipe from Todd: you licensed the right to use it in your kitchen, just like you license iTunes music to play on your iPod; you can eat that recipe, and listen to your tunes, as much as you want, but the license does not permit you to resell.
The restaurant has a trade secret right that protects its recipes against theft. That's the restaurant's intellectual property right. The restaurant's rights stop at independent re-creation such as what Todd has done. Todd, on the other hand, with his re-created recipes has created another kind of intellectual property, namely a copyright. A published recipe, just like sheet music, text in a book, drawings, and the like cannot be legally copied. (Ok there is an exception to the ban on copying known as fair use, but that is discussed elsewhere on Respect Rights). So when you pay 79 cents for a Todd re-creation what rights do you get? Ah, the right to cook yourself a great meal, just like, more or less, those fine restaurant cheddar biscuits next to some pasta fagioli and coleslaw, followed by some special chocolate cookies. And here's a hint, you start those fine cheddar biscuits with 2 and half cups of Bisquick™. (And that little ™ next to Bisquick tells you and me that that name is trademarked by its owner, so no one else can call their flour mix by that name).
Remember those stories about the recipe for Coca Cola® locked for 100 years in a bank vault in Atlanta? Well, cracking that safe will get you some serious time in the 'graybar hotel.' But if you can re-create that taste in your kitchen, you can go into the cola business. But, that ® next Coca Cola is yet another kind of trademark right, known as a registered trademark. So you can invent your own cola, making it as close to 'the real thing' as want, but you better call it Shirley Cola (or whatever your name is, and you can trademark that name) because you can't call it Coca Cola, as that name is taken! And you could make and sell your Shirley Cola, or you could make just the syrup and license bottlers to make six packs of the stuff, or you could license your recipe and someone else would do all the work to get the drinks made and sold, and you can get checks in the mail, just as the saying goes.
Can anyone get into licensing? Absolutely. No college degrees are required. No permits from the government. Just legally create something that other people would like to experience, like a song, or a photograph, or even a recipe.
By Dr. Richard Razgaitis
Sites referenced in this article:
Todd Wilbur's site where he sells individual receipes: www.topsecretrecipes.com
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