Ice Cream: A Recipe for Copyright Disputes

With the weather slowly nudging up to “it’s too hot” levels outside, we thought we’d find something ice cream related for this article.

There is an ongoing dispute between Jeni Britton, founder of Jeni’s Splendid Ice Creams, and The New York Times. She claims the Times “stole” her ice cream recipe technique, which involves using cream cheese for a rich, no-egg texture. Britton says she first published this cream cheese technique in her 2011 James Beard Award-winning book “Jeni’s Splendid Ice Creams at Home”, describing it as “the first new recipe in ice cream in decades, if not centuries.” The New York Times published a recipe in August 2024 featuring cream cheese as the “secret ingredient” without crediting Britton.

Looking at this from an English law viewpoint: can you actually own a recipe?

Not easily.

Recipe for Success

English law is clear: you can’t protect a recipe with copyright. Recipes are generally considered lists of ingredients and instructions, which is considered functional information rather than creative expression. Copyright protects the expression of ideas, not the ideas themselves, and requires the work to be the “author’s own intellectual creation” showing creative choices and personal touch. Following a recipe to produce food would not infringe copyright. However, the particular literary expression used to describe recipe methods may receive some copyright protection – the stories, backgrounds, and unique writing style that food writers include.

What about passing off?

While theoretically possible, proving passing off for a single recipe technique would be extremely difficult, requiring demonstration of established goodwill, misrepresentation, and resulting damage.

Really, the most powerful form of IP protection for a recipe is not a registered right. It’s trade secrets (confidential information). Keeping something ‘secret’ versus trying to patent it (if indeed patentable) is a key trade off to be considered early on. Trade secrets are the foundation and value of some of the world’s biggest brands; Guinness, Coca Cola’s recipe, KFC’s original recipe of 11 herbs and spices.

Two Little Words

Let’s be honest, if someone says Original Recipe, most of us will think Chicken, and when we think Chicken we’ll then think KFC. So it’s no surprise that in November 2024, KFC sued Church’s Texas Chicken for using the phrase “Original Recipe” in their marketing, arguing it infringes on the 1984 trade mark closely tied to KFC’s secret mix. KFC and Church’s “amicably resolved” the dispute, although KFC took steps to make sure they could refile the lawsuit at a later date.
Speaking of their secret blend, KFC keeps the recipe locked in a high security vault, and in manufacture it’s split between two suppliers so no one person knows the mix.
So in 2016 when a relative of Colonel Sanders claimed to have found the original recipe in a family scrapbook KFC denied it was the real recipe

Some years prior, they dropped a case against a couple who claimed to have found the original recipe in a basement. The fact this lawsuit was brought about just from the couple simply enquiring if what they had found was the original recipe, shows how seriously KFC takes protecting it. A spokesman for KFC said “Many people have made these claims over the years and no one has been accurate – this one isn’t either,”

Coca-Cola has suffered at the hands of wannabe formula thieves too. In 2006 a staff member, Joya Williams, tried to sell the secret stuff to Pepsi for $1.5 million. Pepsi reported the theft to Coca-Cola and the FBI. Instead of the money, Joya enjoyed 8 years in federal prison.

What’s in a Secret?

A trade secret is information that:

• Is secret (it’s not generally known or easily discovered).

• Has commercial value because it is a secret.

• Has been subject to reasonable steps to keep it secret.

In the case of the cheesy ice cream claim, Jeni’s legal argument would need to prove The NYT unlawfully obtained confidential information or breached secrecy obligations. That is much stronger than copyright or passing off claims.

While core recipe ingredients and methods are incredibly difficult to protect, the real value lies in branding, trade marks, and unique customer experience. The protection isn’t in the ingredients but in the reputation built around them (like a love for that Marmite pizza). Trade secrets can be very powerful and last indefinitely if strictly kept confidential, though they don’t protect against legitimate independent creation or reverse engineering.

What we offer

At Asenda Law, we’ve got years of experience in IP protection, contract law, and trade mark disputes.

We know the impact complex litigation can have on businesses, no matter the size or how long they have been operating, and the peace of mind that proper legal protection gives business owners and creatives.

No matter your query, get in touch today. Let’s chat.