June 27, 2007

Food law.

Restaurants are suing to protect their intellectual property rights:
[Rebecca Charles] acknowledged that Pearl [Oyster Bar] 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.

Those decisions made the place her own, she said, and were colored by her history. The paint scheme, for instance, was meant to evoke the seascape along the Maine coast where she spent summers as a girl.

“My restaurant is a personal reflection of me, my experience, my family,” she said. “That restaurant is me.”
So she copied, and then she was copied. She sues. The defendant, Ed McFarland, says Ed’s Lobster Bar is similar, but not a copy. Which is pretty much what Charles says about Swan.

Chefs are also seeking patents for things like a way to print pictures of food on paper that you can eat and that tastes like food.

Does the paper taste like the food in the picture or something else -- to mess with your mind or challenge your prejudices... like diversity jelly beans?

Oh, I just had a flashback. No, not to blotter acid! To the days of my federal court clerkship, a quarter century ago, when there was litigation about ice cream sandwiches made with ice cream between two big chocolate chip cookies. The original, called Chipwich, was easy enough to copy, and the federal court lawsuit ended with the judge telling Good Humor that if anyone looked at the Chipwichish item pictured on their ice cream wagon and asked for a Chipwich, they'd have to say, "We don't have Chipwiches; we have Good Humor products."

21 comments:

Matthew said...

Does she have a case under a trade dress theory?

vet66 said...

I am cynical enough to believe that this is an advertising ploy to capitalize on the loss of a good sous chef. When did it become newsworthy when people train under a successful chef/restaurant and then move on? It is to be expected. The days of staying with the same employer for 40-50 years are over.

The so-called aggrieved party can still advertise as the "Original."
By the way, any recipe can be improved on by either adding a teaspoon of this or taking away a tablespoon of that.

Imitation is the most sincere form of flattery!

hdhouse said...

On a related note I have some association with the Food Network and there are always threats, irate chefs, irate cookbook writers, who are raising the "stolen recipe" issue, particularly in food illustrations....my presentation looks like your presentation and I did mine first.

The fights can get pretty nasty I'm told. I had a client who before I was associated with them had to pull their "helpful hints" cookbook (ideas on how to use the product) because others had previously entered contests without a good disclaimer (becomes the property of) and litigation ensued.

Talk about leavng a mess in the kitchen

Bissage said...

Lovers' quarrel?

Hell hath no fury.

Looks like she's paying hourly.

There should be more affluent clients like that out there.

A fool and her money.

Ha!

Beth said...

Were they litigious, the descendants of the Earl of Sandwich could cause some real problems.

Justin said...

Beth said...

Were they litigious, the descendants of the Earl of Sandwich could cause some real problems.

And William of Orange.

Bissage said...

Hey! Don't forget Sir Loin of Beef.

Triangle Man said...

Does Original Famous Ray's Pizza set any kind of precedent?

Jeremy said...

How is a Chipwich different than an It's-It?

Emy L. Nosti said...

Hmmm, can you just order a side of the paper for a fraction of the price? Could you order (mail) delivery from famous restaurants all over the world? Could you make an oragami crane that tastes like chicken? Will they douse Times Square in champagne-flavored confetti on New Year's? Will destitute parents give their kids Hallmark chocolate bars (never mind, Hallmark paper costs way more than chocolate)? Will it bring a new meaning to "you've been served?"

John Stodder said...

If they were alive today, I'm sure Pissaro would have sued Cezanne, and Gaugin sued Van Gogh. Salieri wouldn't have had to murder Mozart (I realize that's not really what happened), he could have just gotten a restraining order. Meanwhile, the estate of William Shakespeare would have put a stop to Leonard Bernstein and that rip-off, "West Side Story."

John Stodder said...

A Chipwich is an ice cream sandwhich with chocolate chip cookies. An It's-It uses oatmeal raisin. So there's this, like, massive difference.

Either Ms. Althouse or I are being geo-centric, but as far as I recall, the It's-It was way before the Chipwich. The It's-It was a San Francisco thing that goes back to at least my college years, which began in '73. Given the history as I recall it, the Chipwich people suing Good Humor seems to me like a case of "we stole it fair and square."

Kev said...

"The original, called Chipwich, was easy enough to copy, and the federal court lawsuit ended with the judge telling Good Humor that if anyone looked at the Chipwichish item pictured on their ice cream wagon and asked for a Chipwich, they'd have to say, "We don't have Chipwiches; we have Good Humor products."

I worked for a fast-food place in high school that served Pepsi. We were instructed to ask anyone who ordered a Coke if Pepsi would be OK instead. The reason our bosses said that we had to do this was because the Coca-Cola company was sending out corporate spies to restaurants and ordering Cokes. If they weren't corrected, they'd take it back to their lab and analyze the beverage; if it proved to be Pepsi, they'd sue.

I'm not sure how much of that was true, but my 16-year-old self didn't question it.

Eli Blake said...

A funny twist on this happened a few years ago (about 1993) in Albuquerque. Little Caesar's pizza ran an ad in which an old man by the name of Nunzio made a really bad Italian meal, and all the guests ran to the restroom to puke. The ad ended with something like 'let us do the cooking' and talked about their quality.

An Albuquerque pizza restaurant named Nunzio's didn't think the ad was very funny and filed a lawsuit to make Little Caesar's yank the ad, which they did.

Eli Blake said...

Of couse when I read this I had a thought:

McDonald's (the first large scale fast-food hamburger chain) shouldn't have had to put up with competition. Why, instead of figuring out how to live with Burger King, Wendy's, Hardee's, Jack-in-the-Box, Carl's Jr., Whataburger (I'm sure you all have some in the east too) they should have just gone to court and sued everyone who copied their idea.

And they claim that Ray Kroc was such a business genius. No way-- if he was really a genius he'd have gotten a lawyer.

Eli Blake said...

A link to an article on the Nunzio's suit is here.

blake said...

Kroc recognized the genius of the McDonald's brothers setup: No options. Burger, fries, soda. This allowed them to serve people at an astonishing rate.

I don't happen to think this should be patentable but the same sorts of things are patented constantly by software giants.

Interestingly, even as fast food places have expanded their menus, they've come up with combo menus. Just say "#3"....

Seven Machos said...

No Coke. Pepsi.

Richard Fagin said...

Two Pesos v. Taco Cabana made it all the way to the Supreme Court on Taco Cabana's claim of appropriation of "trade dress." It was pretty clear that the Two Pesos restaurant chain copied Taco Cabana's store layout almost perfectly, but for the colors - Taco Cabana's flamingo pink was substituted by lime green.

Copycats beware!

Maxine Weiss said...

You can't plagiarize a recipe.

Joe said...

There's a lawsuit going on in my town about a burger joint ripping off the "look and feel" of another chain. What's absurd, and quite telling, is the notion that customers go to a restaurant simply because of it's floor layout and color scheme. If these chains can't compete with great customer service and good tasting food then good riddance.