India: The Scrumptious Art– IP Protection To Food Plating Styles

Last Updated: 10 March 2018
Article by Aprajita Nigam and Viksit Singh

Eating, in contemporary times, has escalated from being just a routinely activity to a wholesome and elemental experience. In order to carve through the rigorous competition in the culinary industry, chefs and restaurant owners are accentuating and adopting ingenious steps to enhance the overall experience of eating, for nailing its exclusive association with them. This includes devising an eye-catchy menu with out of the box names for various dishes, sophisticated yet mesmerizing interiors and more specifically a stunning presentation of food to leave a daunting impression on the diner's mind.

A striking presentation/arrangement of food is indeed a creation of human mind, involving the choice of color combinations along with textures, layering and placement. Several hours are spent by a Chef before the presentations of his signature dishes attain finality. Once stolen/reproduced, the exclusivity associated with a particular chef/restaurant might go downhill and can take a toll on its business, thanks to the multiple knock-offs available as a result. This may result in a dent on the creator's will to innovate, thereby making it all the more important to look for protection provided by the law to a produce of the creator's intellect.

The current IP laws in India do not specifically deal with the issue of protection of intellectual property created in the culinary Industry. Issues like the possibility of protection to recipes; restaurant decors etc. have for long formed a part of several debates but are yet to be acknowledged by the judiciary or the legislature. This article is a step in that direction and attempts to analyze, "Whether a chef/restaurant can protect its original presentation or plating of dishes under the Indian copyright law or trade mark law?"

The Copyright Law

In the Indian regime, copyright is a form of protection granted to the authors of original literary, dramatic, musical, artistic works, sound recordings and cinematograph films. The word 'original' has not been defined in The Copyright Act, 1957 ("the Act"), but has derived its connotation through case laws. It is largely understood as a work that 'owes its origin to the author'; the work must originate from the skill and labour of the author and must not be a copy of any other work. Another prerequisite of copyright protection is the fixation of work in a tangible form. Indian regime follows the fundamental rule of copyright law, laid down in Article 9(2) of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Article 2 of WIPO Copyright Treaty (WCT), 1996, that copyright does not subsist in ideas and only protects original expression of the ideas.

It is pretty clear that any drawing, painting or photograph of food or even sculpture made of food items should be protected under Indian copyright law. Thus, there isn't much debate regarding arts that use food as a medium, instead of bricks, stones, metals etc. Diverging from these traditional notions of art is the question whether the arrangement/presentation of food which is intended to be eaten can be considered for copyright protection? The first issue that surfaces while answering this question is, 'whether placing a dish on a plate in a particular manner could be considered an original work of authorship?' Plating a dish is a work of extreme precision where the right portions blended with the right colours are placed together to give the dish an aesthetic and visual value. It requires precise culinary skills, creativity and a definite amount of labour to put the items on a plate. Now, it is a matter of law that copyright can only be granted to works of literary, dramatic, musical or artistic nature. Plating of a dish is the chef's way of encapsulating his motivation behind the dish and expressing how he feels about the same. This makes presentation of a dish no less than a painting or any other original piece of art and for lack of a provision dealing specifically with 'plating', it could be understood as 'any other work of artistic craftsmanship' in accordance with Section 2(c)(iii) of the Act.

For a work to attain copyright, the second stumbling block is its fixation in a tangible medium. This is to prevent a person from attaining copyright on a mere idea. It has been argued that since a dish is meant to be eaten; it is perishable and therefore its presentation cannot be said to be 'fixed'. At this juncture, it is useful to refer to the cases of Kelley v Chicago Park District1 and Kim Seng Company v J&A Importers, Inc.2 The former is a leading case on copyrightability of organic works. Here, the issue before the court was whether an artistically arranged garden was "fixed in a tangible medium" for the purpose of Copyright. The court observed that the living garden lacked the stable fixation normally required to support copyright. Taking cue from this decision, the court in the latter mentioned case also held that a "food in bowl" sculpture created with perishable food is not eligible for copyright protection. The above decisions seem to emerge from the fact that under US Copyright regime, 'fixation in a tangible medium' is an expressly provided requirement3 and a work can be said to be fixed if its copy is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.4 It must be noted, that there are no corresponding provisions under the Indian Act. Though the requirement of fixation is parallel, as copyright subsists in expression and not mere idea, the term 'fixation' has not been defined in such narrow terms. In fact, there is no definition of 'fixation' given under the Act. Therefore, under Indian regime, a broader interpretation of 'fixation' is conceivable.

Plating is an expression of a chef's particular idea to present the dish in a manner that enhances the overall experience of eating and brings out the natural flavors. The fact that the dish is intended to be eaten, or that the food by its very nature is perishable, does not mean that its presentation isn't fixated. The presentation of a dish which is an original art work oozed out of the chef's intellect and which can be exactly re-created, can be said to be fixated. Hence, in case a question arises as to the copyright ability of a presentation of food, the court can find the presentation of food to be 'original work of authorship' and to be 'fixed in a tangible medium', and thus, copyright can be bestowed on the same.


Another burning topic of discussion in the gastronomical kingdom is the contemporary practice of food photography. Social media websites are filled with photographs of food clicked by both professionals and amateurs. It must be noted that clicking photograph of a delicacy whose presentation embraces the chef's/restaurant's copyright may be argued to be an act of infringement as the same may be said to constitute reproduction of a three dimensional work in two dimensional form or storing of the work by electronic means [Section 14(c)(i)(A) and (B)of the Act].

The Trade Marks Law

A trade mark performs the function of distinguishing the products of one person from those of another, thereby creating identification for the source of products. With the surfacing of increased competition in the culinary market, it becomes necessary for chefs and restaurant owners to create identification and recall for their gastronomic delicacies among the consumers. A diner's/consumer's experience in respect of any food product is a harmonious melody played by the instruments of flavor, presentation and ambience wherein the rhythms generated by each individual component hold their respective importance. An arresting presentation plays a significant role in making a delicacy look appetizing and attracts consumers. If successful, the sublimity of the food presentations may create a recall effect in the minds of the consumers and they shall start identifying an offbeat presentation style with a particular chef or restaurant.

Under the Trade Marks Law, the right nail for striking protection for food presentations is trade dress. Trade dress law protects the different characteristics of visual appearance of a product. Presentation of a dish is thus protectable under trade dress law. There have been instances where trade dress claims have been enforced by chefs for food presentations. In 2007, Rebecca Charles, owner and executive chef of Pearl Oyster Bar, filed a trade dress infringement claim against her former sous chef (a chef who is the second in command in kitchen), Edward McFarland. It was alleged that McFarland's new restaurant, Ed's Lobster Bar, infringed Charles' restaurant's trade dress including the presentation of dishes. This case reached settlement with McFarland changing certain aspects of his restaurant and items on the menu.5

It must be remembered that any action based on trade marks law finds its feet in the likelihood of confusion or deception among general public and consumers. In N.Y. Pizzeria, Inc. v. Syal6, while adjudicating a trade dress infringement claim relating to plating methods the court observed that food plating may be protected under the trade dress law if it is distinctive and a party may be able to prove trade dress infringement if there is likelihood of confusion.

Proving likelihood of confusion in respect of food plating is a tough challenge, if not a Herculean task. When a consumer goes inside a restaurant to dine, it is not easy to prove deception in respect of the source from which the product plated on the table emanates. Even if the product plated in front of a consumer in Restaurant A looks identical to a product offered in Restaurant B, the consumer wouldn't be easily confused in to believing that the product was created by Restaurant B. In order to be successful in such an action for trade dress infringement relating to plating methods, the original chef/ restaurant shall have to at least prove that the consumers might mistakenly believe some kind of association between the offered delicacy by the defending chef/restaurant and the original chef/restaurant. Without other factors to support the trade dress claim such as restaurant décor, this would be a difficult feat to achieve especially for high end restaurants that are only patronized at unique locations. Nonetheless, highly commercialized restaurant chains with numerable franchises may be at a better footing for proving likelihood of confusion/association if the food plating styles are copied.

With the consistent mushrooming of the culinary industry, it becomes interesting as well as needful to explore the IPs vested in its various facets, including the food presentations. Where protection for recipes under trade secret law is vastly known, the domain of food presentations is a niche area awaiting an IP probe. This article is an earnest attempt to identify plausible protections; however, the picture shall become clear once judicial interpretations are extended on this subject.


1. 635 F.3d 290, 303 (7th Cir. 2011)

2. 810 F. Supp. 2d at 1053-55

3. Section 102 , Copyright Act of 1976

4. Section 101, Copyright Act of 1976

5. Powerful Katinka, Inc. v McFarland et al. 1:2007 cv 06036 (S.D.N.Y. June 26, 2007).

6. No. 3:13-CV-335, at *2 (S.D. Tex. Oct. 20, 2014).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions