I have finally come up with a delicious hot sauce recipe and I want to begin sharing it with people and possibly selling it. I understand the FDA food labeling requirements for listing the ingredients, and the process of creating my sauce is not very complex but I want to protect it from people who may try to duplicate it. Can I copyright or otherwise protect my hot sauce recipe?
A simple list of ingredients and the steps taken to make it cannot be protected under the copyright law but a cook book of recipes with original literary comments can. Trade secrets or patents are the best protection for a hot sauce recipe.
All food manufactures have to list the ingredients of their recipes on their labels per the Food and Drug Administration requirements. There are many hot sauces that use the same ingredients to make a Louisiana style hot sauce but why do they taste so different and why are each of them their own successful entity.
Can you use the same ingredients in your sauce from other manufacturers?
You can use the same ingredients in your sauce as other manufacturers, and you will consistently see a combination of peppers and vinegar. I have written posts on the simplicity of hot sauce recipes so the ingredients should not be any real secret. However, some of the processes that manufacturers perform are quite different and it this process that makes these sauces stand out.
What is keeping companies from duplicating each others processes?
Let’s look at some ingredients from some popular brands. Franks Red Hot for example lists the same ingredients as several other branded hot sauces yet each of them tastes different to me. That is because each of them has their “trade secrets” (more on this below) or particular way of processing their sauce. Each of these manufacturers lists “aged hot peppers” so this is more than likely a big part of their trade secret.
Why not just produce the same sauce as some of the best-selling brands?
If you are going to attempt to copy a popular recipe it could be a losing battle at being successful in the hot sauce industry for these reasons:
- You are competing with an already successful and well-known branded sauce.
- Consumers may purchase a well-known branded sauce over one they have never heard of.
- It could end up as a legal battle and you would not come out on top.
If someone tries to copy a major brands trade secret recipe it probably would not hold up in court especially if the branded company has been operating as a successful business for any length of time. Do some of these sauces using similar ingredients really taste that much differently or has their trademark set them aside from the competitors?
How do you protect an original hot sauce recipe?
Your original hot sauce recipe must fall under one of the four categories of intellectual property; Copy Right, Trademark, Patent or Trade Secret if you are looking to protect it. You do not need to follow any of these to make and sell your sauce. However, if you are planning on selling your sauce on a mass level through merchandisers you should follow certain protection rights. It legally protects you should your sauce become successful enough to compete with some others.
As mentioned above a simple list of ingredients from a recipe cannot be protected under copyright law but there are other ways to protect your original idea. A copyright can protect the idea in writing. However, this offers a week protection for your recipe because someone else could come along and use the same recipe and simply have a different written description about it.
A description, explanation or illustration can be protected. The ingredients you use for your sauce is similar to others you have tasted but the process in which you got there may be slightly different, which makes it stand out but there is not copyright protection for this either.
However, a creative, written expression of the recipe (ingredients and process) can. Here is the link for the US Copyright Office if you have a series of recipes in cookbook form.
A collection of recipes published in a cookbook can be copyright protected. There would need to be more written as far as the description of the process or original comments on the process. If there is something slightly different that you have done to the recipe that will capture it with words, also known as literary expression, than a copyright is possible.
Can you patent or trademark a hot sauce recipe secret?
It is possible to patent a recipe. With a patent you will have to prove that the recipe has never been done before. Larry Tarazano from the United State Patent and Trademark Office (USPTO) states that recipes are “eligible” for a patent. There are many food products that receive patents every year and are most often created in a laboratory and not a simple kitchen. Applying for patents and the patent process can be very expensive and your idea will need to be original. This can be a very difficult way to protect your hot sauce recipes.
You can certainly patent the process for making the sauce as well if you are using an original method or more scientific approach to making sauce.There are pepper hybrids that receive patents, but they would have to be distinct enough to be awarded a patent. Some peppers distinct in appearance or producing peppers without any seeds have received patent and so have some unique sauce bottles shapes. Search the data base here but it is very extensive.
How to apply for a patent
Determine if you are eligible for a patent here with the frequently asked questions from the US Patent and Trademark Office or start the application process here.
How much does a patent cost?
Fees for the application, search and examination are needed and costs could reach into the thousands. However, most entrepreneurs and small businesses hire attorneys to help them navigate through the application process and these costs add up. The average cost for a patent in the US are $12,000 but cost can be up to $50,000 to include attorney application filing fees. About half of these costs are patent drafting and prosecution fees.
A trademark will only protect your logo and name not the recipe itself. This protects a phrase, words, designs or symbols for your product but not the process for making it. Apply here. A trademark will typically only cost a few hundred dollars.
Don’t pass this off as not being important. It not only offers protection for your unique sauce but it also an easy way to communicate to consumers the greatness of your product. Getting a Trademark is easy and it never expires.
If you are going to pursue a trademark for your hot sauce you will need to do the research at Trademark Electronic Search System (TESS). Type in “hot sauce” and 711 entries show up to include the name of the person who came up with the recipe followed by the words hot sauce. Be creative if you plan on applying for a trademark.
3. Trade Secret
A trade secret to protect your unique hot sauce recipe is the best way to ensure your original product remains novel.
What is a Trade Secret? When companies boast they have a “secret recipe”, that is the truth. These recipes, to include ingredients, methods and procedures are kept under lock and key, literally!
A trade secret is not the same thing as a patent or trademark and there isn’t any application process, states upsizemag.com. There are not any forms or registrations to fill out but there should be cautionary measures to protect your recipe and process.
Believe it or not Coca Cola does not have a patent but operates on a trade secret.
However, the Uniform Trade Secret Act (UTSA) has been adopted by most states but the definition is very broad and places emphasis on companies taking measures to keep their secrets. Bigger companies may have secured, locked areas with limited access and security guards. It could be a continuous process within your company.
The larger the company the more nondisclosure’s you would need especially if you have suppliers of your ingredients. That includes all chefs, production workers and anyone involved with the process. This would be the easiest method of protecting your hot sauce recipe especially if you only have a few employees. Takes these steps:
- List your ingredients and create a description of the process. You may already have this written down somewhere but accurately define what it is you are protecting. Peppers and vinegar in a hot sauce are no secret but there is something unique about the flavor or process of your particular sauce.
- Mark them as private, personal or confidential and limit the number of copies you have of these papers. This may seam obvious but if you have multiple files of your recipe in several locations you could lose track of them or allow easy access for your employees.
- Compile a list if people who may have access to the documents or ingredients. If you have a large company with an entire staff dedicated to bottling and labeling, these personnel wouldn’t necessarily know what’s inside the product. If you have chefs or others involved with the process, then define who they are.
- Lock up the documents and make sure you are in regulate who has access. Maybe there is a Word Doc or PDF that needs to password protected. Or maybe it is your Grandmothers recipe handwritten by her and locked it a vault.
- Non Disclosure Agreement. A simple oath from your employees may not be enough. Have them sign a document stating the information will not be shared. It is not that you don’t trust them, but employees come and go and a signed document will hold up in court, if it were to come to that. An article in Nolo.com mentions that courts state that this is the most significant way to maintain the privacy of your hot sauce recipe. You can create a Non-Disclosure Agreement (NDA) here for under $35.
Whether you are using a unique recipe or are copying the ingredients of a popular sauce there, will be a lot of work involved and you should find some way of protecting it. Trade secret are used by lots of companies and can provide your original hot sauce with the ability to secure your unique process.