Trade Secret Sauce: Trade Secrets, Not Copyright, Protect Chefs

2 minute read | September.18.2015

While they say that a grand jury could “indict a ham sandwich,” the First Circuit recently reminded chefs that you can’t copyright a chicken sandwich. Specifically, a former employee of a Puerto Rican Church’s Chicken franchisee sued the franchisee for copyright infringement for the recipe to the “Pechu” sandwich, a sandwich he and his wife claimed to have created in the late-80s [1]. After hunting and pecking over the relevant authorities, the First Circuit clucked in disapproval, reminding the culinary world that the recipe for the sandwich at issue, no matter how tasty, is not copyrightable.

So, is it open season on recipe theft? Can the lowly line cook steal Chef Thomas Keller’s Oysters and Pearls formula from The French Laundry? Can the dishwasher at Di Fara take Domenico DeMarco’s pizza sauce secrets and open a joint across the street?

Enter trade secret protection.

Of course, in order for trade secret law to protect her recipes, the chef must go through all the usual steps to protect her trade secret, including taking reasonable steps to keeping the secret recipe, well, a secret. While the trade secret owner need not go as far as Coca-Cola’s vaulted secret formula, having employees with access to the secret recipes sign non-disclosures, and keeping the recipes to a need-to-know basis is a strong start.

A federal court in North Carolina recently ruled that even well-known food items (maybe even a chicken sandwich) can still warrant trade secret protection so long as the actual recipe remains a secret. The court also ruled that, in pleading a claim for trade secret misappropriation for stolen recipes, the plaintiff is not required to plead each specific recipe in the Complaint under both North Carolina’s version of the Uniform Trade Secrets Act and under Federal Rule of Civil Procedure 8.

[1] The sandwich consists of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.