“Food, glorious food”: cooking up trademark rights in India

Until a specific Chef Act is passed, lawyers must borrow creative skills to fashion suitable legal outcomes from ingredients provided by existing statutes. Under Indian law, protecting creativity falls under the ambit of intellectual property, which means that for culinary delights, elements such as raw materials, preparation process, recipe expression through written or visual format, dish presentation or plating, dish name, restaurant name and even its layout, can all be subject to protection under existing IP statutes.

Geographical indications

As “a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin”, geographical indications (GIs) identify products as having originated in a given place. Several Indian-grown food products such as darjeeling tea, assam tea, malihabadi dusseheri mangos, nagpur oranges and basmati rice have all received protection as GIs.

In 2008, India and Pakistan discussed filing a joint application before the European Union to register basmati as a geographical indication, but this plan was shelved. In 2018, India filed a protected GI status request for basmati with the EU Council on Quality Schemes for Agricultural and Foodstuffs. In an interesting turn of events, a notice of opposition was filed by Pakistan against India’s claim in late 2020. Negotiations are currently ongoing, but the only possible solution would be a joint request made by both countries. It seems like this rice-pot is on slow boil, for now.

GI protection in India also extends to food preparation, including meals such as tirupathi laddu and Banglar rasogolla (both sweetmeats), Bikaneri bhujia (a savoury snack), Goan feni (an alcoholic drink) and Hyderabadi haleem (a mutton curry). When it comes to claiming proprietary rights over a signature dish, GI protection may not be ideal, as it is impractical and difficult to attribute a GI to a single chef or inventor – GIs are more of a community right. However, protection and recognition does lend local businesses an edge over competitors operating in other regions. Champagne must be from the French region of Champagne, otherwise it is just sparkling wine.

Trademarks

Chef Madan Jaiswal at the famed Bukhara restaurant in Delhi has attracted celebrities and world leaders alike with his black lentil creation, Dal Bukhara. Similarly, only a select few leaders around the world can say that they have tasted Dal Raisina, a regular feature on the menu of the Indian president’s residence Rashtrapati Bhawan, which is located atop Raisina Hill. Chef Machindra Kasture first made this dish in 2010. Meanwhile, Gaggan, an Indian restaurant in Thailand and proud owner of two Michelin stars, has dishes titled Green with Envy, which is a coriander foam served with green peppercorn chicken kebabs, and Lick it Up, a mix of different curries placed on a plate that the diner must lick. So how are all these dishes protected?

A straight-line remedy seems to be simply to seek trademark registrations for the names of uniquely named signature dishes, such as the examples above. Trademark registration may also be sought for celebrity chefs’ names, which can prove useful in keeping copycats at bay. However, choosing to build a brand around a name carries risks, especially if a third party owns or acquires the trademark pursuant to a business sale.

For a trip down memory lane, back in 1986 and 1987, leading Indian hotel chain ITC opened two branches of its legendary Delhi restaurant Bukhara in the United States, but these were subsequently shut down in 1991 and 1997. Two years later, three former employees opened two restaurants in New York City named Bukhara Grill and Bukhara II. Several elements of the original restaurant, such as logos, décor, staff uniforms, wood-slab menus and red checkered bibs, were reportedly lifted. Serving a sweet victory to ITC, the New York Court of Appeals held that:

When a business, through renown in New York, possesses goodwill constituting property or a commercial advantage in this State, that goodwill is protected from misappropriation under New York unfair competition law. That is so whether the business is domestic or foreign. (ITC Limited and ITC Hotels Limited v Punchgini, Inc - New York Court Of Appeals 2007 NY Int 164).

Trade dress

A trademark is a mark capable of graphical representation – although this has been widely interpreted. Food product packaging and even entire store layouts have been registered as trademarks across the globe, including in India, where the iconic Taj Hotel building in Mumbai is protected as a registered trademark. However, such marks are perceived as non-traditional, and the threshold for their distinctiveness is high. For instance, an application filed for registration of the layout of The Vedic restaurant as a 3D mark, was refused.

Be that as it may, in addition to trademarking the name of a food product, restaurant or chef, it remains possible to protect the appearance of plated food and kitchen, restaurant or even a table layout, provided that these meet the threshold for distinction and render a source-identifying function. An example of this would be the signature swirl of cupcakes at the Magnolia bakery, which enjoy international trademark protection.

Considerations

One could say that lack of a robust protection framework might dissuade chefs in India from asserting intellectual exclusivity in their creations. However, as awareness about IP protection, monetisation and enforcement diffuses throughout the culinary universe, one can expect to see more IP rights asserted in this space. Signature dishes and iconic creations can have tremendous power over the customer’s palate – they can shake and they can stir – and invite endless (and profitable) sequels of the same experience.