Protecting Cuisine under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?

By Cunningham, Emily | The Journal of High Technology Law, January 2009 | Go to article overview

Protecting Cuisine under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?


Cunningham, Emily, The Journal of High Technology Law


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 neighborhood. (1) In her complaint, Charles alleged that McFarland had pirated Pearl's menu, recipes, dish presentations, decor, "look and feel," all of which Charles believed amounted to a flagrant misappropriation of both her and Pearl's intellectual property. (2) The detail that reportedly irritated Charles most was a dish on McFarland's menu called "Ed's Caesar." (3) According to Charles, McFarland had copied her own Caesar salad recipe, made with English muffin croutons and a coddled egg dressing, which Charles maintained was a signature dish at Pearl. (4)

The culinary and restaurant industries billed Charles's suit, which settled out of court on undisclosed terms in April 2008, (5) as among the first of its kind. (6) 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 totality. (7) 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 sparked fierce debate in the culinary world, particularly with regard to intellectual property rights and cuisine itself. (8)

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 allegedly ripped off. (9) 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 restaurants. (10) Wickens admittedly copied the cuisine and the unusual methods of preparation and presentation, rendering the original creations and the Interlude dishes indistinguishable. …

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