Introduction
The Italian IP framework makes a number of legal tools available in the context of food, including:
- patents for inventions of production methods and innovative food and food-related products;
- designs and models for the shape and presentation of food products; and
- copyright for layout and food lighting when a particular form of layout or lighting has creative value.
The choice of appropriate protection must be made on a case-by-case basis. Often, the possibility of using several legal frameworks cumulatively should also be considered, each for the particular kind of protection it can offer.
With regard to ingredients – and, in particular, additives – both patents and (often preferably) trade secrets are widely used in Italy and require great care to avoid loss of rights. Recipes can also be protected through confidentiality, since, if they are released, copyright protection is limited to their expression, but does not cover the idea.
When it is not possible to make use of designs and models (or shape trademarks) for the layout and presentation of products with an expressive value, it is always necessary to assess whether they can be ascribed to works protected by copyright (since article 2 of the Copyright Law contains a non-exhaustive, but only exemplifying, list), which can be protected only in the presence of creativity. If the means to achieve presentation and serving (and also lighting) of food are unique and capable of solving a technical problem in a non-trivial way, or at least can provide a particular efficacy or easiness of application or use to already-existing systems, patent protection may be used:
- for an innovative solution not within the reach of an expert in the field – as an invention, with a duration of 20 years; and
- for a particularly efficient shape – as a utility model, with a duration of 10 years.
Even more important – especially in Italy – is the protection of manufacturing (and often also commercial) know-how. This must be taken care of not only in contentious contexts, but primarily in advance thereof. Strategic advice should be sought to establish the most appropriate protection choices, including through the registration of designs, models and trademarks, and for labelling and communication.
To this purpose, particular consideration should be given to the different parties involved in a contract – not only concerning the exploitation of the creations, but also in defining the respective rights of the different subjects who have contributed to them, often in different but complementary roles. This helps to avoid conflicts that could undermine the effective protection of their exploitation by unauthorised third parties.
Infringement may affect all rights that can be taken into account in the food sector, including:
- trademarks, protected designations of origin and protected geographical indications, including those relating to the shape of products and their packaging (also in the form of the increasingly frequent lookalike product);
- designs, models and patents; and
- forms of fraud and outright deception, which are becoming increasingly widespread on social media.
In fact, even for food creations, the rise of social media represents both opportunities and threats, which must be managed in the best possible way. On the one hand, they allow easier access to widespread recognition and diffusion, even for less structured subjects or those with fewer resources. On the other hand, however, they multiply the opportunities for copying and even parasitically exploiting the creations of others. Careful monitoring and cost-benefit assessments must be carried out in order to choose the most appropriate means of defending, contracting and exploiting assets in this field, which also requires a creative approach on the part of lawyers.
For further information on this topic please contact Cesare Galli at IP Law Galli by telephone (+39 02 5412 3094) or email (galli.mi@iplawgalli.it). The IP Law Galli website can be accessed at www.iplawgalli.it.
