A big meal or a big deal? The subtle line

Romito's pasta (left) v Sposito's pasta (right)

Is there IP in culinary recipes? As readers may know, this has been a topic dear to this very blog's heart and its contributors' mouths for a while now [here]. Readers may also remember that recently a Dutch court rejected the claim that copyright could subsist in a peculiar kind of cheese.

Via Katfriend Federica Pezza (LLM candidate, Queen Mary University of London) comes the news that yet another culinary IP battle is now taking place in a country where food indeed matters: Italy.

What is going on? Federica explains:

"Certainly, when taking that lovely pasta picture, during a pleasant night out, the innocent photographer was not entirely aware of the consequences of his action. What he would have liked to obtain was likely to be the jealousy of his friends on social media, together with a bunch of always-appreciated “Likes”. What he actually achieved was the start of a very singular battle. In other words, expectations versus reality. 

The main characters of this unexpected battle are two celebrated Italian chefs.
In one corner of the ring is Ristorante Reale's Niko Romito, the three-Michelin-starred claiming that copyright has been infringed in a 2010 creation of his, Fettuccia Gamberi Rossi e dragoncello [pictured above on the left-hand side]. In the other corner is Taverna Estia's Francesco Sposito, a mere [not really] two-Michelin-starred chef, who created the dish pictured above, on the right-hand side. 

But it is not about wrestling. It is a battle, instead, where ladles are the new weapons and the final prize is IP ownership of a particular type of pasta with shrimps. Thus, the old, common question comes again to our mind. Is a recipe protectable in itself? Are these shrimps trying to stretch the notion of copyright too much? 

In order to clarify these questions, I have asked one of the experts of this super-tasty grey zone. Davide Mondin, a professor at ALMA (the International School of Italian Cooking) has pointed out how in this field it is fundamental to distinguish between the recipe and its content. In fact, while the first is protectable as a literary work under copyright law, the latter encounters greater difficulties, also because of the well-known idea/expression dichotomy. 

Not everyone would however
approve of shrimp pasta

A 2013 ruling of the Tribunal of Milan provides clarity in regards to protection of recipes as literary works. The issue in this case was a recipe of homemade cured meat which the claimant published on a website and the defendant allegedly copied and included into his own collection of recipes compiled by the defendant. The court sided with the claimant: the fact that the defendant had expressly acknowledged the claimant's paternity of the work did not rule out the infringement of his economic rights. 

Compared to the homemade cured meat, why do these shrimps raise so many issues? In the case of Sposito vs Romito, the issue is not the recipe as literary expression, but rather its contents and realisation. In regard to this, Davide Mondin, explains how the Italian legal framework might be struggling to accommodate this type of protection. Leaving literary works aside, not even the Italian notion of artistic works might help as it appears not to include taste among the senses involved. Let’s also think about the peculiar characteristics of food and of the possible issues when dealing with trade marks, including distinctive character and functionality. 

As a result, the many doubts and uncertainties make this grey zone even greyer than a typical morning in London.Thus, in light of the lack of a specific IP remedy, the only solution may be to rely on unfair competition law rules. At present, we are not sure about the outcome of this new gastronomic battle. The only certainty is that lunchtime is approaching and thinking of those two lovely dishes of pasta with shrimps is becoming kind of haunting."