The Cincinnati and Dayton Metropolis has become a popular destination for craft beer fans and
many craft breweries are flourishing. Two friends and former research biologists (John and Mark) decided to get in on the action. John and Mark have brewed together continuously for personal consumption over a 15-year period. They spent significant sums on perfecting their recipes and many trips to supplier locations and breweries in other cities. They are extremely passionate about using local ingredients and blending science and art to produce a high-quality product.
Based on their experience and passion, John and Mark formed a nano-brewery in a Northern Cincinnati suburb, known as Turtle Creek Brewing Co. (“Turtle Creek”). While Turtle Creek offered the styles of beer available at other craft breweries, they believe that their beers stood out and that there was a sufficient market in the area.
Only John and Mark are currently engaged in brewing. They do not permit employees to participate in the brewing process. However, on occasion, John and Mark permit family and friends to be on-site when they brew. During those occasions, the ingredients are separated into pre-sorted, non- descript containers. Turtle Creek’s employees serve beer in the tap room and are educated generally on the ingredients and flavor profiles but not on the specific ingredients or the amounts used. Turtle Creek, however, was very proud of their use of hops, which is one of the key ingredients, from local suppliers and publicly disclosed their use of and support for local hop farmers.
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Turtle Creek’s recipes were not posted publicly. However, certain other local brewers do post recipes on-line. See, e.g., www.madtreebrewing.com. Turtle Creek’s recipes are kept in a file cabinet in John and Mark’s office at the brewery, which is in the back of the brewery, and not in an area to which patrons normally have access. Turtle Creek employees do not normally enter John and Mark’s office but on occasion are asked to retrieve something from the office.
Turtle Creek was well-received by local beer fans. People loved the beer but Turtle Creek was limited by its initial location, which did not have sufficient space and parking to meet the demand. Therefore, after two years at their initial location, Turtle Creek decided to move into a new location, which would allow them to increase their production 10 fold. This location would also give them the ability to bottle beer and sell it to wholesalers and retailers. With the increased production, Turtle Creek’s owners are going to need to permit other employees to be involved in the brewing process.
Turtle Creek has asked our firm for legal advice on whether its recipes are entitled to trade secret protection and how to protect those recipes moving forward. Please prepare a strategy memo. Your strategy memo should (1) analyze whether Turtle Creek’s recipes are likely to receive trade secret protection; and (2) provide ongoing advice with Turtle Creek’s impending move in mind for protecting the recipes from disclosure. For the strategy memo, please do not do any additional fact research. However, you will need to research Ohio trade secret law. Additionally, please attach a draft non- disclosure agreement (NDA) for use with the employees charged with brewing beers for Turtle Creek.