Skip to content

All the IP You Can Eat

Here’s a case that I can sink my teeth into:  The owner of a small New York restaurant called Pearl Oyster Bar is suing a former employee for setting up a copycat eatery.  More below the jump.
The complaint and the New York Times coverage feature the menu of usual IP suspects.  There’s a thin pancake of a copyright — the selection and arrangement of the elements of the restaurant’s decor.  A trade secret topping — the Caesar dressing handed down from Mom.  The aroma of trade dress — walls colored to evoke summers in Maine.  And a pinch of moral rights, of the Napoleonic variety.  “My restaurant is a personal reflection of me, my experience, my family,” [plaintiff Rebecca Charles] “That restaurant is me.”

The case strikes me as thin gruel.  A selection-and-arrangement claim (also recast, I take it, in trade dress form) founders on a lack of (confusing) similarity apparent from the restaurants’ websites (see links below) and a lack of originality and/or distinctiveness.  The recipes can’t be copyrighted but might be trade secrets — but they certainly don’t sound secret in this case, not if they were shared unconditionally before the plaintiff got them into her mixing bowls.  The case isn’t so thin that a Rule 11 motion is in order, but thin enough that the settlement judge might recommend that the plaintiff consider separating her business identity from her family history, instead of taking her anxieties out on a competing chef.  If ever there were a case of Freud-in-IP, the NYT story makes it clear that this is one.

Neither armchair psychoanalysis nor the merits of the case make the case interesting.  Evidence of this sort of IP omnipresence is so abundant these days that these cases really aren’t news.  So why is this news?  And why be so harsh on this otherwise innocent plaintiff?  Because of the transparent Death of a Salesman “attention must be paid” character of the publicity surrounding the claims.  On its face, this case isn’t about the food and it isn’t about culinary ethics.  (Here’s an obligatory citation to Fauchart and von Hippel, arguing that chefs don’t need IP and don’t rely on it.  If second-comer-chef violates the norms of the kitchen, the rest of the community can throw him out the back door of the profession.)  The plaintiff is trying to whisk herself into a position of culinary influence.  The case is about competitive times for chefs, in a restaurant business in a city that likes to obsess about the comings and goings of The Next Big (or Little) Thing.  Upscale lobster rolls not so unique any longer?  Persuade the Times to connect your business woes to the IP zeitgeist.  Now you’re cutting edge again.

It would be a better strategy, I think, for Pearl to really cook up something new.


Pearl’s Oyster Bar

Ed’s Lobster Bar

Updated 6/27 with additional links:

Updated 7/1 with More from Ed Levine @ Serious Eats:

[W]hat we are witnessing is a culinary divorce being played out in the public eye. . . .  This fight is not about diners enjoying unfettered access to delectable lobster rolls and Caesar salads. It’s about a violation of trust, resentment, and betrayal behind the counter and the stove at a couple of restaurants in New York.