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Affording IP Protection to Artistic Presentation of A Restaurant Dish. Possible?

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Ankita Vashisht

on 8 February 2016

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Transcript of Affording IP Protection to Artistic Presentation of A Restaurant Dish. Possible?

Recent influx of chefs from around world establishing much celebrated upscale restaurants in India
CHAPTER 4 - FEASIBILITY OF Protection under the COPYRIGHT law
Form of Expression
CHAPTER 5 - FEASIBILITY OF Protection under the DESIGN law
New or Original
I. Introduction

II. Why is legal protection needed

III.Feasibility of protection under Trademark Law

IV. Feasibility of protection under Copyright Law

V. Feasibility of protection under Design Law

VI. Conclusion

Intellectual Property Protection of 'Artistic Presentation' of Restaurant Dish
CHAPTER 2 - Why is legal protection needed
CHAPTER 3 - FEASIBILITY OF Protection under the TRADEMARK law
Chapter 6 - conclusion
Dining is increasingly becoming popular form of leisure & entertainment.
Eating not a mere perfunctory activity
Diners look at food through smart phone's lens before tasting - Foodstagramming
Culinary industry has become highly creative zone; highly ingenious presentation of food on plate.
Result: culinary knock-offs
India is attracting this phenomena too with influx of chefs of late.
Community norms aren't of much use; current available/debated legal protection only for recipes, decor, menu.
Need to carve out space in IP regime for protection of edible creative food plating and presentation.

Stimulated debate among restaurant patrons, legal circle on whether to give societal acceptance to edible creative culinary creations on plate as art Already been happening in countries having creative edge on the avant-garde art front.

Need to study whether the Indian IP regime is decked out to tackle with consequent legal issues like culinary thefts, riffs & plagiarism by chefs & other restaurants, & social trends like foodstagramming.

to study existing Indian IP regime & to try to check feasibility of carving out space for edible creative culinary creations on plate.
Pivot issue:
whether the Indian IP regime is equipped to tackle the looming riffs of edible creative culinary plating of food in restaurant dishes.
Stratified into sub-issues:
(a) whether the trade dress law provides the requisite protection to edible creative culinary plating of food;
(b) whether the copyright law carves out space for the requisite protection to edible creative culinary plating of food;
(c) whether the design law is the feasible area of protecting edible creative culinary plating of food.
Why not empirical research?
Views of several avant-garde chefs on problem faced, a propos other chefs & diners, easily available on online reviews of restaurants & scholarly articles;

Also no hypothesis created that would demand observations & experimentation.
Doctrinal Research seems fitting.
Idea is: to explore feasibility of protection of edible creative culinary plating under existing IP regime.
Focus on:
Primary sources:
Indian Intellectual Property Laws on Copyright, Trademark, Design; the US Copyright Law (Title 17 of the United States Code), judgments from the US & the Indian jurisdictions;

Secondary sources:
Commentaries on Indian IP regime, scholarly articles. Much of these articles are from foreign jurisdictions because issue has, as such, not been addressed in India.
Major reliance on current legal position & debate in the US because this phenomena, of creative chefs competing for artistic presentations on plate, is clearer & more visible there.
Scope limits to looming issues of celebrated chefs worldwide, & their upscale & high-end restaurants appearing on the Indian scene of late.
Creative culinary industry flourishes in "low-IP equilibrium."

Most blatant copying of dishes is prevented through community-based norms especially wrt Michelin-starred French chefs.
enforced through self-imposed professional & social sanctions, internal sense of morality & personal pride of elite chefs
remarkably well-suited for small community of elite chefs sharing customers, cooks, investors, & small geographic areas such as a city
What happens when comunity expands?
Norms may not be enough.
Gucchi, Chef Gaggan Anand's piece de resistance at Gaggan, Bangkok
What when its knock-offs become available easily?
Will there be any thrill left for diners to travel all the way to Gaggan, Bangkok for it?
Doctrinal hurdles
Distinctiveness [s. 9(1)]
Non-functional [s. 9(3)]
*Two Pesos v. Taco Cabana
Inherently distinctive
Plating is packaging
Food is product
Just like decor
A choreographed menu
Secondary Meaning
Through newspaper/online ads, reviews, amateur diner photos on social media etc.
Proof of chef/restaurant being well known
Generic claims are not acceptable. Has to be unique.
Eg. Bottura's Moeche Polenta dish
Tradedress protects the combined effect created; not specific elements (even if functional)
There shouldn't be practical concerns like cost reduction, quality improvement etc while plating.
Likelihood-of-Confusion Test
Market factors to be considered:
Degree of similarity depending on popularity of dish/chef/restaurant
Sophistication of customers
Geographic market
Work of authorship= Dish per se; not recipe
Doctrinal hurdles
Intricate design, creative display, artistic precision
What about re-creations of classics?
Chef Gaggan Anand's version of Egg Bhurji
Allow thin copyright
Test of originality seems to have come in line with the US standard of looking for creator's personality in the work
Recipe serves as fixation; perishable art must find protection just like fleeting dance performance
Utilitarian Aspect
Move to Design Law
If can't protect as a performance.
Food For Thought
Would chefs really want to stop foodstagrammars?
Doctrinal hurdles
S. 15(2), Copyright Act
More than 50 copies reproduced; covered under Design Act
Significantly Distinguishable
[S. 4]
Ornamental, aesthetic design
Functional: mixed with polenta to give spice element
Chef Massimo Bottura's Moeche and Polenta
Protects Functional aspect of ornamental design unlike Trademark and Copyright laws.
Original way of plating polenta over spice (crab shaped)
Dishes served for commercial purpose; does cross the 50 mark
Line cooks, sous chef, head chef; use of spray bottles, moulds, tweezers etc. = industrial process
Industrial process: line cooks using crab mould, placing polenta round, parfaits, herbs.
Only NOVEL dishes would be protected; not those in public domain already
Industrial Process
Culinary industry is based on tradition of sharing and learning- open source model.
Community norms serve the purpose to an extent.
Need for only incremental increase in formal IP protection since first mov advantage is being claimed by many contemporary chefs, thinking like entrepreneurs.
Copyright, trade dress and design laws can be identified as potential areas of protection by carving out space for plating of restaurant dishes as subject matter.
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