Protecting cuisine under the rubric of intellectual property law

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PROTECTING CUISINE UNDER THE RUBRIC OF INTELLECTUAL PROPERTY LAW: SHOULD THE LAW PLAY A BIGGER ROLE IN THE KITCHEN? ∗ Emily Cunningham Cite as 9 J. HIGH TECH. L. 21 (2009) I. Introduction In June 2007, Rebecca Charles, chef-owner of Pearl Oyster Bar (“Pearl”) in New York City’s Greenwich Village, sued her former sous chef, Ed McFarland, now chef and part owner of Ed’s Lobster Bar in New York’s SoHo 1 neighborhood. In her complaint, Charles alleged that McFarland had pirated Pearl’s menu, recipes, dish presentations, décor, “look and feel,” all of which Charles believed amounted to a flagrant misappropriation of both her and 2 Pearl’s intellectual property. The detail that reportedly irritated Charles most 3 was a dish on McFarland’s menu called “Ed’s Caesar.” According to Charles, McFarland had copiedher own Caesar salad recipe, made with English muffin croutons and a coddled egg dressing, which Charles maintained was a signature 4 dish at Pearl. The culinary and restaurant industries billed Charles’s suit, which settled out 5 6 of court on undisclosed terms in April 2008, as among the first of its kind. In the past, chefs and restaurateurs had invoked intellectual property concepts to defend particular aspects of their restaurants, but most had stopped short of filing suits, and few had attempted to argue intellectual property theft in such 7 totality. While Charles maintained that her case was about protecting her restaurant as a whole and not about laying claim to a type of food, her lawsuit

∗  J.D. candidate 2009, Suffolk University Law School. 1. SeeComplaint at 1:3, Powerful Katinka, Inc. v. McFarland, 2007 WL 2064059 (S.D.N.Y. 2007) (No. 07 CV 6036). 2. Id.  3. Pete Wells,Chef Sues Over Intellectual Property (the Menu), N.Y.T IMES , June 27, 2007, at A1. 4. Id.  5. Pete Wells,Chef’s Lawsuit Against a Former Assistant is Settled Out of Court, N.Y.T IMES , Apr. 19, 2008, at B2.  6. Eater.com, Pearl Oyster Bar v. Ed’s Lobster Bar: Day 2,archived at http://www.webcitation.org/5WlBtVS5n. 7. SeeWells,supranote 3. Copyright © 2009 Journal of High Technology Law and Emily Cunningham. All Rights Reserved. ISSN 1536-7983.

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sparked fierce debate in the culinary world, particularly with regard to 8 intellectual property rights and cuisine itself. This Note explores intellectual property laws in the culinary arena and examines whether imitation of a chef’s cuisine constitutes intellectual property theft. This Note will establish that intellectual property protections such as copyright, trademark and trade dress, do not encompass recipes and culinary creations, nor should they. Utilizing copyright and trademark laws to protect cuisine will hinder competition among chefs and restaurants, discourage creativity and innovation, and undermine the culinary industry’s norm of sharing. An increase in such protections also will fail to enhance chefs’ profits, enforcement will be difficult, and litigation will be costly. The Note will demonstrate that while patent law can protect highly innovative recipes and methods of food preparation, most chefs probably will not utilize the patent system because of its high costs and stringent patentability standards. In addition to well-established norms in the culinary community, existing legal protections such as trade secret law, private contracting and the imposition of fiduciary duties provide adequate safeguards for a chef’s proprietary information. Part I of this Note presents background information related to the issues discussed above, addressing the traditional culture of the culinary industry, the significance of the convergence of technology and cooking, and the growing interest in legal protection for culinary creations. Part II sets forth statutory and case law standards pertinent to the issue, discussing principles of copyright, trademark, trade dress, patent, and trade secret law. Part III of the Note analyzes the issues in light of the legal standards, traditions, culture and goals of the culinary industry. Ultimately, this Note explores the ramifications of extending intellectual property laws too far into the culinary world. II. Background A. Copycat Cuisine: A Frequent Occurrence? Rebecca Charles is not the first chef-owner to have her culinary ideas 9 allegedly ripped off. In 2006, the eGullet Society for Culinary Arts & Letters ousted Australian chef Robin Wickens of Melbourne’s Interlude for copying unique dishes from the menus of Alinea and wd~50, two high profile American 10 restaurants. Wickens admittedly copied the cuisine and the unusual methods

8. See,e.g., Jason Krause,When Can Chefs Sue Other Chefs? Defining legitimate legal claims in the restaurant world, C HOW . COM , Sept. 4, 2007,archived athttp://www.webcitation.org/5WlCxyGMO. 9. See, e.g., Pete Wells,New Era of the Recipe Burglar, F OOD &W INE , Nov. 2006 (discussing recent occurrences of “copycat” cuisine).  10. Daily Gullet Staff,Sincerest Form, Interludes after midnight, eGullet Society for Culinary Arts &

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Protecting Cuisine Under the Rubric of Intellectual Property Law

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of preparation and presentation, rendering the original creations and the 11 Interlude dishes indistinguishable. eGullet also exposed another chef—one at the Mandarin Oriental Hotel’s Tapas Molecular Bar in Tokyo—who offered a tasting menu that was identical to that of Washington D.C.’s minibar, where 12 he had previously worked. Incidents like these disconcert many chef-owners, who work in an intensely 13 competitive business and want to protect their investments. Chefs are not the 14 only ones who want protection; their investors do too. Many high profile chefs are now household names, and there is significant value in what they produce, so investors might be wise to demand intellectual property 15 protections. Some also fear a growing trend in which corporations copy the inventive techniques and culinary creations of local establishments and use 16 them in franchising chains. Homaru Cantu, chef and founder of Chicago’s moto restaurant, asserts that “food producers have always copied products from cutting edge restaurants. Why should we leave that money on the table for 17 them?” As competition and the cost of opening a restaurant continue to skyrocket, legal experts predict an increase in lawsuits similar to Charles’s as

Letters (Mar. 20, 2006),archived athttp://www.webcitation.org/5WoICNQHh;see also Rachel Gibson,Is copying a fancy dish flattery?, T HE A GE ,(M ELBOURNE ) April 1, 2006,archived at http://www.webcitation.org/5WlKJ55gO. Wickens, while visiting the United States, worked at Alinea for a week as a stagiere (unpaid intern) and dined at wd~50. Katy McLaughlin,‘That Melon Tenderloin Looks Awfully Familiar…’, W ALL S T .Note that chef-owners of Alinea (Grant Achatz) andJ., June 24, 2006, at P1. wd~50 (Wylie Dufresne) did not sue Wickens, andDufresne has been reluctant to criticize Wickens for copying the cuisine. Paul Lewis,Can you copyright this?: That's the question raging in the food world this week after a chef in Australia was accused of copying the signature dish of a New York restaurant, G UARDIAN (L ONDON ), Mar. 24, 2006, at 20. 11. SeeWells,supranote 9; Lewis,supranote 10. Some of the dishes that Wickens copied were: sliced poached squab served in a beaker with two burning cinnamon sticks; smoked yogurt that tasted like bacon; and pureed prawns bound with transglutiminase pushed through a die to make noodles.Id.Wickens also copied unique presentation pieces such as glass votive candle holders and test tube beakers.SeeDaily Gullet Staff, supranote 10; Lewis,supranote 10; Gibson,supranote 10.  12. Steven A. Shaw,The merit of preservation, further tales of culinary plagiarism, eGullet Society for Culinary Arts & Letters (Apr. 6, 2006),archived at http://www.webcitation.org/5WrJ1F2u4;see alsoWells, supranote 9. José Andrés, chef-owner of minibar, reportedly wanted the Mandarin Oriental to either pay him a licensing fee to serve the dishes or to change its menu. McLaughlin,supranote 10.  13. Wells, supra9. Today, because “one hit restaurant can mean multiple locations, television note appearances and a line of cookware,” chefs are looking at their menus and restaurant concepts as intellectual property. McLaughlin,supranote 10.  14. Nichole Aksamit,Chefs Guard Secret Ingredients of Success, O MAHA W ORLD H ERALD , Sept. 19, 2007, at D1. (quoting Chicago patent attorney Charles Valauskas). Dufresne of wd~50 says he is “torn” because he “like[s] to share ideas but [is] being warned not to by patent attorneys and potential investors.” McLaughlin,supranote 10.  15. Aksamit,supranote 14.  16. Martha Neil,Mixing IP With MMM, 6 No. 19 ABAJ.E-R EPORT 3 (May 11, 2007);see also,e.g., Posting of Inventolux to eGullet Society for Culinary Arts & Letters (Mar. 20, 2006),supranote 10 (writing that“‘Molecular cuisine’ is breaking new ground. Every day there are new discoveries that major companies have not considered. Therefore those techniques are the ones that should be protected”).  17. Krause,supranote 8;see alsoNeil,supranote 16 (writing that the possibility of corporations capitalizing on Cantu’s culinary inventions has Cantu worried).