[Commons-Law] Chef Sues Over Intellectual Property (the Menu)

[Prabhu Ram]

>From the NYTimes


Chef Sues Over Intellectual Property (the Menu)
By PETE WELLS

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 Ed's 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 Ed's 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 Ed's Lobster Bar, which opened in
March, was no imitator.

"I would say it's a similar restaurant," he said, "I would not say it's a copy."

Lawyers for Ms. Charles, 53, said that what Ed's 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.

In recent years, a handful of chefs and restaurateurs have invoked
intellectual property concepts, including trademarks, patents and
trade dress — the distinctive look and feel of a business — to defend
their restaurants, their techniques and even their recipes, but most
have stopped short of a courtroom. The Pearl Oyster Bar suit may be
the most aggressive use of those concepts by the owner of a small
restaurant. Some legal experts believe the number of cases will grow
as chefs begin to think more like chief executives.

Charles Valauskas, a lawyer in Chicago who represents a number of
restaurants and chefs in intellectual property matters, called their
discovery of intellectual property law "long overdue" and attributed
it to greater competition as well as the high cost of opening a
restaurant.

"Now the stakes are so high," he said. "The average restaurant can be
millions of dollars. If I were an investor I'd want to do something to
make sure my investment is protected."

Ms. Charles's investment was modest. She built Pearl Oyster Bar for
about $120,000 — a cost that in today's market qualifies as an
early-bird special.

She acknowledged that Pearl was itself inspired by another narrow,
unassuming place, Swan Oyster Depot in San Francisco. But she said she
had spent many months making hundreds of small decisions about her
restaurant's look, feel and menu.

Those decisions made the place her own, she said, and were colored by
her history. The paint scheme, for instance, was meant to evoke the
seascape along the Maine coast where she spent summers as a girl.

"My restaurant is a personal reflection of me, my experience, my
family," she said. "That restaurant is me."

Mr. McFarland, she said, had unfairly profited from all the thought
she had put into building Pearl. "To have that handed to you, so you
don't have to make those decisions — it's unfair," she said.

But the detail that seems to gnaw at her most is a $7 appetizer on Mr.
McFarland's menu: "Ed's 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.

Mr. McFarland called the allegation that he was a Caesar salad thief
"a pretty ridiculous claim."

"I have my own recipes for my items," he said.

Asked to elaborate on the differences between his restaurant and
Pearl, Mr. McFarland said: "I'd say it's a lot more upscale than
Pearl. A lot neater, a lot cleaner and a lot nicer looking." Ed's
Lobster Bar incorporates novel features like a raw bar and a skylight,
he said; as for the white marble bar, he said one could be seen in
"every raw bar" in Boston, where he had done "additional homework in
designing the dining room."

Calling the lawsuit "a complete shock to me," Mr. McFarland went on to
say: "I just find it interesting that she'd want to draw attention to
the fact that she's bringing a lawsuit against me that's just going to
bring more business my way. I personally have nothing to be concerned
about, in my opinion."

Other chefs, however, are taking intellectual property rights seriously.

One of Mr. Valauskas's clients, Homaro Cantu, has applied for patents
on a number of his culinary inventions, like a method for printing
pictures of food on flavored, edible paper. Mr. Cantu also makes his
cooks sign a nondisclosure agreement before they so much as boil water
at Moto, his restaurant in Chicago.

Tim Wu, a professor at Columbia Law School, said that this almost
seemed an inevitable result of bringing lawyers into the kitchen. "The
first thing a lawyer would say is have all your people sign
nondisclosure agreements," he said. "It's a classic American marriage
between food and law."

Few chefs have followed Mr. Cantu's footsteps all the way to the
Patent and Trademark Office. One who did is David Burke, the chef at
David Burke & Donatella, on the Upper East Side and other restaurants.
He said he had trademarked a "swordfish chop" and "salmon pastrami"
but no longer tried to defend those terms from copycats.

"You've got to chase people down if they use it. I got tired of it,"
he said. But he said he still applied for trademarks on more recent
innovations, like his bacon-flavored spray.

Many chefs are skeptical that intellectual property law conforms to
their line of work. Tom Colicchio said that he had decided not to do
anything about a sandwich shop that he considers a clone of his
sandwich chain, 'Wichcraft. "There's nothing you can do," he said.
"You can't protect recipes, you can't protect what a place looks like,
it's impossible."

But Ms. Charles is willing to spend some time and money to prove her
point. (She once sued the partner she opened Pearl with, Mary Redding,
in an ownership dispute. Ms. Redding went on to open her own West
Village seafood restaurant, Mary's Fish Camp.)

Ms. Charles has come to think that if this case forces Ed's Lobster
Bar to change until it no longer resembles Pearl Oyster Bar, it could
be the most influential thing she has ever done.

"I thought if I could have success with this lawsuit, that could be an
important contribution," she said. "If some guy in California is
having problems, he could go to his lawyer and look at this case and
say, 'Maybe we can do something about it.' "




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