Intellectual property law and restaurants

I think there was a thread about chefs patenting dishes and so on long ago, in reference maybe to Moto, but there's an article in the NY Times about one oyster bar in New York suing another for stealing all its distinctive characteristics.

What's interesting-- and probably hopeless, though you never know-- about all this is that the chef who's doin' the suin' isn't someone like Cantu inventing laser-etched wontons or whatever; basically, the suit says, "I stole these things carefully and painstakingly, and then you stole them with much less effort from me":

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad...

She acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco. But she said she had spent many months making hundreds of small decisions about her restaurant’s look, feel and menu...

But the detail that seems to gnaw at her most is a $7 appetizer on Mr. McFarland’s menu: “Ed’s Caesar.”... she and her lawyers claim it is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons.

She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. It became a kind of signature at Pearl.

Can you really sue someone for stealing how you stole from dozens of historical models?

Mike G wrote:Can you really sue someone for stealing how you stole from dozens of historical models?

Of course you can sue. Doesn't mean you'll prevail. Could easily end up being very expensive for the one who sues, but they may just write the expense off to their PR budget.

Confession: I'm not a lawyer, and I know we have many distinguished members of the legal profession (is that an oxymoron?) on the board who may provide a more learned comment.

This seems like trademark law to me.. if Oyster Bar #1 trademarked their distinguishing characteristics, that would probably help.

After all, a fast food joint opening up with a bright yellow and red interior and Golden Arches outside just might have a valid lawsuit on its hands, no?

I suspect the main claim is one of trade dress, which is a subspecies of trademark. As Ed suggests, this would largely be a claim that the "look and feel" of the second restaurant copy the distinctive elements of the first restaurant. While trade dress is eligible for federal registration, I seriously doubt that the first restaurant in question here sought or obtained registration. Most of the major trade dress cases in this area have dealt with chain restaurants.

As Mike suggests, patent does not appear to be implicated here. I suppose copyright could apply if certain aspects of the menu (the actual descriptions of dishes) were copied, but there are only so many ways to factually describe what's in a dish, so any copyright protection of menu descriptions would presumably be quite thin if there is even a valid copyright interest at all. While recipes themselves can be copyrighted (again, the more descriptive elements and not simply the ingredients lists), assembling a dish based on another's (copyrighted) recipe is not an infringement of that copyright. Trade secret is another potential ground (claiming that some process, procedure or formula is a trade secret), but the requirements for protecting a trade secret and for what qualifies as a trade secret set a very high bar that perhaps only the Motos of the world might reasonably be able to meet.

As the Columbia professor in the article suggests, the best claim, if any, may be based in contract. If the individual had signed an NDA or noncompete, the original restaurateur would presumably have a better case. On the whole, maybe this was against the ethics and norms of the restaurant industry, but unless there are material facts left out of the article that pop up in the complaint (such as the existence of an NDA, noncompete or some other sort of contract), it seems questionable whether there is anything legally actionable here.

The real question is whether either restaurant will still be in business when the lawsuit finally gets litigated.

Generally copycats generally don't succeed. What's the old phrase - "often copied, never duplicated".

The topic of intellectual property and chefs/cooks came up at an office lunch a few weeks ago. One of my co-workers explained that the culinary repertoire of her friend, now proprietor of a pub-type place on the North Side, reflects very clearly all of the establishments for which he once cooked. That is, his friends can identify from which job each dish is derived. I wondered aloud about what precedents there might be for intellectual property in this realm. Unable to think of anything except Cantu, I postulated that for any cook hoping to make a name for him- or herself, it probably would not be in that person's best interests to copy others' dishes--that the copying would likely be construed as evidence of a lack of skill and/or creativity. I guess I had a little Harold Bloom on my mind, the idea that the best cooks work outside of the "anxiety of influence" and create original work. I thought of Bloom again this morning while reading the NYT article on my way to work, but then it struck me that the article never really brings up the topic of damages. Wouldn't the bottom line for this type of litigation (or really most litigation) be whether Charles is losing business because of McFarland's copying? In the end, it's not really about whether McFarland hurt Charles' feelings by stealing the green that evokes her childhood summers in Maine or even about just borrowing the idea of the green, right?

I think it's a shame that food-creators don't have the same protections as, say, visual artists and musicians, but I also can't think of a realistic way in which they could.

A lot of this comes down to the difference between skill and art. 99% of cooking is a skill. I want skills to be learned and carried at a succession of jobs; I don't want every fry cook at every diner to have to invent a new way of frying potatoes, any more than I want every contractor to invent a new way of building houses. So while it may never get him/her a line of cookbooks like Charlie Trotter's, your friend's friend whose menu is a work history is to be honored, not disdained, for having a repertoire of reliable dishes which can be counted on to satisfy night after night.

Then we get to the Cantus-- or the other chefs who have a name brand and a distinctive and unusual profile for their food. There, artistry and originality matter, and at the edge there's some value to the concept of intellectual property-- though we also have to ask whether anyone should be able to patent a dish and deny it to others. Cantu I gather is doing so on the basis of techniques which are unique and artful, the use of liquid nitrogen and lasers to produce a chocolate coated beet balloon, which is a different thing from saying, I own the concept of chocolate and beets put together.

But in any case that's obviously a tiny and rarefied part of the market. What I find ludicrous about this suit is that it's a restaurant which is consciously trying to evoke other existing places, and admits its own lack of originality, yet wants to sue someone else for copying it. It's like Quentin Tarantino insisting that he alone has the right to steal things from different Asian action movies-- if you borrow from both Master of the Flying Guillotine and The New One-Armed Swordsman, you're stealing from him. That's crazy.

jlawrence01 wrote:The real question is whether either restaurant will still be in business when the lawsuit finally gets litigated.

Generally copycats generally don't succeed. What's the old phrase - "often copied, never duplicated".

I was interested in this story mainly because I loved to eat at Pearl Oyster Bar when I lived in NY. I can't speak to the legal issues involved, but I do wish there were more places like Pearl in Chicago.

The discussion about chefs "re-inventing" vs. "stealing" recipes came up a little while ago in reference to Marcel from Top Chef in a Wired article using a WD-50 recipe.

http://nymag.com/daily/food/2007/05/did ... all_1.html

gmonkey wrote:The discussion about chefs "re-inventing" vs. "stealing" recipes came up a little while ago in reference to Marcel from Top Chef in a Wired article using a WD-50 recipe.

http://nymag.com/daily/food/2007/05/did ... all_1.html

Sorry for the off-topic comment, but Marcel's dish is not appetizing at all.

Dish, which seems determined to stick to its weekly schedule despite now being a blog, has a rather similar take on this story, but takes it to the further point of calling up some chefs for their take (though Cantu, the one who's actually made some forays in this area, is not among them). An example:

“Look at all the people who worked under Jean Banchet [founder of the recently closed legendary Le Français]. A lot of what we do when cooking straightforward French is stuff we learned from Jean Banchet. He could say we stole his intellectual property. But instead I think it makes him feel as though he’s got a lineage. Banchet in turn learned from Fernand Point.” –Michael Altenberg, executive chef/owner (Bistro Campagne, Crust)

Hi,

On Homaru Cantu's business card, that cannot find at the moment, states approximately, "Creativity is not copying."

Regards,