The Liberty Papers

Pete Wells of The New York Times writes today about what may well be one of the most inventive extensions of intellectual property law that I have ever seen:

Sometimes, Rebecca Charles wishes she were a little less influential.

She was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers knockoffs of her own.

Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Eds Lobster Bar in SoHo and her sous-chef at Pearl for six years.

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Eds Lobster Bar copies each and every element of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

Mr. McFarland would not comment on the complaint, saying that he had not seen it yet. But he said that Eds Lobster Bar, which opened in March, was no imitator.

I would say it is a similar restaurant, he said, I would not say it is a copy.

Lawyers for Ms. Charles, 53, said that what Eds Lobster Bar had done amounted to theft of her intellectual property – the kind of claim more often seen in publishing and entertainment, or among giant restaurant chains protecting their brand.

That is right. She is asserting that someone who copied her ideas for a restaurant has violated her intellectual property rights. In this digital age, Intellectual Property is easy to obtain but heavily regulated. Fortunately, there are law firms that specialize in trademark, copyright, and intellectual property. If like Ms. Charles, you have an issue with the theft of intellectual property, you may be able to oppose a trademark with the aid of a specialized law firm that may be able to take your case.

Intellectual property cases can be complex. Consequently, if you need help and support understanding commercial and business law matters, it is best to reach out to an expert such as LegalVision.

As is typically the case with stories, like this, though, there is much more to the story. As it turns out, Ms. Charles ideas were not entirely original:

[Ms. Charles] acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco.

Now, in the same spirit, could not McFalrand argue that Eds Lobster Bar was inspired by Pearl ? After all, how many original ideas are there when it comes to restaurants. Can anyone really tell me the difference between Chilis and TGI Fridays? Or Romanos Macaroni Grill and The Olive Garden? It is food people, there are only so many ways you can make it.

But the essence of the problem with Intellectual Property today comes in the story of a Caeser Salad:

[T]he detail that seems to gnaw at [Rebecca Charles] most is a $7 appetizer on Mr. McFarlands menu: Eds Caesar.

She has never eaten it, but she and her lawyers claim it is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons.

She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. It became a kind of signature at Pearl. And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars.

When I taught him, I said, You will never make this anywhere else, she insisted. According to lawyers for Ms. Charles, the Caesar salad recipe is a trade secret and Mr. McFarland had no more business taking it with him after he left than a Coca-Cola employee entrusted with the formula for Diet Coke.

Let us just dissect this one for a second. Ms. Charles learns a Caeser Salad recipe from her mother, who in turn had extracted it from another chef decades ago. And now she claims that another chef has violated her intellectual property rights by duplicating it.

More to the point, though, is the fact that Caesar Salad (and, that, by the way, is the proper name, not Ceaser Salad), is in itself an original idea that has been copied by, and modified by, countless chefs, professional and amateur, for the past 83 years. For Ms. Charles to claim that her modifications to an idea that has been around for almost a century constitute intellectual property worthy of protection is, quite honestly, absurd.

Serious trademark attorneys nyc, like Cohen Schneider Law, identify, register or protect a trademark or intellectual property and so are there to help in resolving matters like this, however, from a legal perspective, her IP claim is dubious at best. There is admittedly no originality in the recipe.

The only credible legal claim that Charles would have at this point is that McFarland, who was apparently a former employee of Ms. Charles, violated her trade secrets by copying the recipe.

But there are two problems here. First, the recipe itself was a copy from someone else. Second, there is no evidence from the article that Charles took any steps to maintain the secrecy of the recipe. She shared it with McFarland and did not extract from him any explicit promise that he would not share it. And, quite frankly, she served the salad to the public on the daily basis. Anyone could have taken it home and figured out how she made it.

From a legal perspective, I cannot see how she has a case.

But that is not the purpose of this post.

The purpose of this post is to point out the absurdity of the current state of intellectual property laws. To say you can claim an enforceable right over a food recipe is, quite simply, absurd.