Expert: Kacey Cahill - 5/17/2009

Question
This might be a strange question but I can't find the answer anywhere. I make candy and chocolates out of my home. I want to open up a business selling my confections. However, I am a self taught candy maker.  Most of my learning came from books so naturally some of the candy (like my divinity and basic caramels) recipes also came from books.  My question is, am I allowed to sell my candies if they are made from these recipes. I know for a fact that one of the recipes is from a book written by a gentleman who owns a candy shop, but I do not know if the recipe in the book is the same as the one he sells in his shop. I am just wondering if I can still sell my candy using that recipe or do I have to change my recipe. I have no plans to sell the recipe or add it to a cookbook. I just want to make the candy from it. Any help in this matter is appreciated. Thank you for your time.

Answer
Brandy, First of all, I am always willing to sample in case you need people to make sure you are at the top of your game.  Second, you are fine.  If a recipe is published in a book, you cannot "copy" it (ie make you own recipe book and include it), but you are free to practice it (whether for profit or not). The only thing that can stop you from practicing is a patent.  If they have a method patent for some type of chocolate making formula, then you will have to take a license from them, but nothing in a book would suggest they did.  In fact, even if you came up with these recipes on your own and somebody else had a method patent that covered what you are doing, you would be in the exact same place.  So my thought is do what you are doing and take heart, because in a recession, chocolate sales go UP!

I hope this is helpful, but please keep in mind that this is intended not as legal advise but only for educational purposes.  Should you need further legal assistance, please contact me.

Kind regards, and I am serious about the testing job.

Kacey Cahill
Principal, Kacey Cahill Law
www.kaceylaw.com
kcahill@kaceylaw.com