Queens, NY asked in Employment Law, Intellectual Property and Copyright for New York

Q: I work at a cookie company and it is not my job to create cookie inventions but I made one on a slow day and they stole

Selling my cookie I invented in stores without paying me. They also didn’t let me name it and are asking customers online to compete in naming the cookie and winner gets creator rights on the cookie. I was basically thrown to the side after I made them a delicious cookie they liked and they decided to sell it in stores without credit me or paying me or anything. It’s not my job to invent cookies I only make cookies they already have in the kitchen. I was allowed to work on my own cookie on a slow day for fun but they ended up really liking the cookie I made and decided they wanted to sell it in stores. And now someone else will be able to be named creator and I wasn’t asked to name my cookie or compensated for inventing the recipe

1 Lawyer Answer
Daniel Michael Luisi
Daniel Michael Luisi
  • Intellectual Property Lawyer
  • Licensed in New York

A: By itself, a recipe is not protected by copyright law because it is only a list of ingredients. See U.S. Copyright Office, Circular 33, Works Not Protected By Copyright.

However, a recipe embedded in detailed instructions on how to combine the ingredients, especially when written in your unique voice in, for example, a good blog post or cookbook might be protected by copyright. Adding additional creative content such as photos can strengthen your application.

Your former employer is probably trying to beat you to it by turning it into a brand using marketing surveys. Your best bet, if you think your cookie recipe is potentially commercially valuable, is to create and publish your own content, and also to start selling your cookie with your brand and register a trademark ASAP with the USPTO. Developing your brand name and trademark is a combination of legal, creative and marketing work. Whether a given brand name is eligible for trademark depends on a legal analysis under the Lanham Act and a common law trademark search to ensure that there are no same or similar brands selling same or similar product categories in any state, local or federal market throughout the U.S. This is because trademark ownership adheres to the first user in commerce, not the first to file, though successful filing on the principal register does entitle you to a presumptive right to exclusive use of your mark throughout the territorial United States. Contact a qualified IP lawyer for help if you are serious about pursuing this as a business.

P.S. You may hear an answer along the lines that your employer owns the copyright on your creation as a work “made for hire” pursuant to the Copyright Act, Title 17 U.S. Code Section 101. This is an incorrect analysis. Who will own the copyright and trademark associated with your recipe depends on the first to develop it into creative and branded content and to begin selling it, as I analyzed above. In a pure recipe form, no one owns the copyright because it is not yet subject to copyright protection.

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