Perfumes, cosmetics, hair care products, cold drinks, secret recipes for extra crispy chicken – they all pose a dilemma, namely whether to patent them and tell the whole world about them or whether to hang on to what they consist of - much like Sméagol from Lord of the Rings when he tried to hold on to “Precious”.

“Like any invention that’s capable of being subject to patent protection, a new perfume, cosmetic or cold drink for example must not only be new in its own right - never have been done before anywhere in the world - but must also be inventive. It cannot simply constitute a mixture of ingredients that are commonly used in the trade unless that very mixture is something startling. This is just one hurdle all inventors face,” says Alexis Apostolidis, partner: Patent Litigation and head of Competition Law at law firm Adams & Adams.

Apostolidis says the dilemma is whether one should patent what may essentially be a recipe – for example, as part of the trade-off for obtaining exclusivity in respect of one’s newly concocted perfume, you have to disclose to the world what your invention comprises. “If it’s a perfume, then you’d have to disclose those ingredients that it’s made up of - essentially a recipe - for which you have sought protection. Of course, the ingredients, would have to be listed on the packaging – in a general sense, but not the exact proportions, or the manner in which they are mixed,” he says.

But the downside according to Apostolidis is that a competitor may design around your perfume (or cosmetic etc) and achieve a similar product whilst avoiding the infringement of your patent.

“A prime example is the recipe for Coca Cola®. It has never been patented and has been kept as a trade secret. Many competitors have similar products but none have managed to make their products taste the same,” says Adams’ Patent Litigation expert.

So, what are we to do? Apostolidis’ advice is that unless your product contains an indispensible ingredient without which the product would simply not be the same, and unless the indispensible ingredient is not easily substitutable with another ingredient which would have the same effect, keep the recipe close to your heart, as a trade secret, and keep your rivals guessing.

Of course, as in life there are always exceptions, and if you think you have something new, always chat to your patent attorney for guidance. Now, get out there, and create a uniquely South African product!

For more information contact:
Alexis Apostolidis,
Adams & Adams
012 432 6000