Intellectual Property Protection in the Food Industry

by T+B Blog Team on February 20, 2013

Although forecasts for the restaurant industry predict little to no growth over the next few years, it’s important to note that worldwide it’s a trillion-dollar business. In fact, this year, on any typical day, restaurant industry sales average a mind-boggling $1.8 billion.

In today’s economy, restaurants have begun to focus more on customer loyalty — not only for their place of business, but for their chefs too. The reputation of a restaurant can rise and fall around the person in charge of the kitchen. That chef may be best known for a “signature” or “trademark” dish which may be responsible for a large part of investors’ profits. So should chefs and restaurants be protected from knock-offs like the fashion industry? Can recipes or the way food is plated be registered trademarks?

What are the major intellectual property issues facing the food and restaurant industry? Let’s take a look at some of them, starting with the topic of sharing and borrowing, from recipes to décor. On the road to becoming a chef, most people train in a professional kitchen under a chef’s tutelage. Skills, special techniques, and even recipes often end up being passed chef-to-chef. In the past, “borrowing” a dish from another chef was considered a form of flattery. These days, it often ends up in a lawsuit.

Take the case of Rebecca Charles, the owner-chef of Pearl Oyster Bar in New York City’s Greenwich Village. When Charles’ former sous chef, Ed McFarland, opened up his own restaurant called Ed’s Lobster Bar, she claimed he copied “each and every element” of Pearl Oyster Bar (from the white marble bar, to the straw-backed chairs, to the Caesar salad dressing recipe passed down from her mother). So she filed suit, claiming McFarland stole her intellectual property. McFarland told The New York Times: “I would say it’s a similar restaurant,” he said, “I would not say it’s a copy.” Unfortunately, we have no court decision to report back on; the two parties ended up reaching a confidential out of court settlement.

An earlier, oft-cited case, Taco Cabana v. Two Pesos, had addressed the issue of dueling restaurant décor. Two Texas-based Mexican fast food chains fought over their similar “looks” all the way to the U.S. Supreme Court. The case finally ended in a trade dress decision (Note: To establish a claim for trade dress infringement, a company must demonstrate the distinctiveness of its product’s appearance). The Court found Taco Cabana’s trade dress distinctive and ruled in its favor.

In addition to trade dress protecting the look of a restaurant, intellectual property lawyer Naomi Strauss, writing in the UCLA Law Review, said that an expansion of trade dress could be used “to cover the plating of restaurant dishes is an ideal way to codify existing norms in the restaurant industry and to maintain an industry-appropriate level of IP protection.” You can read the full article, “Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry” here.

Is plating a “work of art”? Some say it is. Take, for example, chef Alfred Portale’s towering constructions of food at Gotham Bar and Grill in New York City. Portale’s restaurant is known for its almost architectural plating of food. “Visually dazzling,” proclaimed one review of the restaurant in its early days. Does this mean both chefs and restaurants should be provided the same intellectual property protection as an artist and a work of art? Can the way a food is placed on a plate be distinctive? What do you think?

Another source of many legal fights are restaurant names, especially when someone tries to borrow one from an existing restaurant. In the U.K. recently, chef Gordon Ramsay attempted to file a trademark application for “The Spotted Pig” which is already the name of a U.S. restaurant whose investors happen to be some rather famous people, including Mario Batali, Bono, and Jay-Z. Ramsay’s trademark plans grabbed a lot of social media airtime, most notably from chefs Jamie Oliver and Anthony Bourdain who criticized his plans in some scathing Tweets. In the end, Ramsay abandoned his plans for a U.K. “The Spotted Pig” trademark.

Batali, one of the Top 5 Earning Chefs of 2012, was already familiar with the issue of a restaurant borrowing another’s name. He filed trademark registrations in several countries for Babbo, the name of one of his New York-based Italian restaurants. However, he did not file a trademark application for the name in the U.K. As a result, a non-Batali Babbo restaurant is currently serving Italian cuisine in the Mayfair section of London.

Here’s a more recent phenomenon that some of you may want to think about as an IP issue. Have you noticed more and more people in restaurants taking photos of their food with their smartphones? Annoying, we know.

Food PhotoSome restaurants are taking measures to prohibit it (like David Chang’s Seiobo in Sydney, Australia and Shoto in Toronto, Canada), while others say mildly that they “discourage” flash photography. Is taking a photo of the food you are paying for a case of stolen intellectual property? Or is it free publicity for the restaurant? After all, it’s most likely going to be posted on a social network and seen by at least 1 or maybe 1,000 of someone’s closest friends. Of course, using the photo for profit is another issue entirely. What are your thoughts about taking photos of food in restaurants?

(P.S. You can download a PDF of this article here.)

 

 

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