When Can Chefs Sue Other Chefs?

Defining legitimate legal claims in the restaurant world

By Jason Krause

Until recently, lawyers and chefs didn’t often work together. “When I started in the food business it was very marginal; it was for people who would stay up all night drinking who were not necessarily thinking about a career,” says Rebecca Charles, owner of the Pearl Oyster Bar in New York. “Now it’s a huge business and it’s taken very seriously.”

Recently, Charles has become embroiled in a high-profile lawsuit with a former employee she accuses of stealing her restaurant’s concept. She says she’s had her ideas stolen before, but this time she has decided to make a legal stand. “For some reason people act like restaurants are a mysterious world where normal laws don’t apply,” she says. “But this is a business just like any other, and at some point you have to stand up for your rights.”

Chain restaurants and industrial food producers have long employed attorneys, but for the most part, independent restaurateurs and chefs have not. However, as the restaurant business becomes increasingly lucrative, some chefs are turning to the legal profession to protect their interests—everything from the paint color they use on the walls to secret recipes. It’s not as strange as it may sound. A look back at legal precedents shows that even in the freewheeling world of restaurants, there are limits to what you can steal.

Taco Smackdown

Charles’s suit alleges that a former Pearl sous-chef, Ed McFarland, copied her menu, interior design, and business plan to open his own New England–style seafood joint, Ed’s Lobster Bar.

“For some reason people act like restaurants are a mysterious world where normal laws don’t apply.”

Charles says she’s gotten a negative reaction from people in the industry who think she’s simply trying to make a legal claim to her style of seafood, which has been around for decades. “I think the mistake people make is that my case is about copyrighting food—I’m not trying to lay claim to the lobster roll,” says Charles. “This is about identity theft: Someone took everything that made my restaurant unique and duplicated it across town.”

The question of one restaurant aping another is actually one of the few settled areas of restaurant law, which lawyers call trade dress. The landmark case is Two Pesos, Inc. v. Taco Cabana, Inc. from 1992, which went all the way to the Supreme Court. In it, San Antonio’s Taco Cabana claimed as its trade dress the concept of serving Mexican food in a “festive eating atmosphere.” Its stores were built on two levels with a step between them, and there were pink, orange, and yellow stripes painted around the tops of the buildings. A competitor operating in Houston, Two Pesos had adopted a similar building design, only its stripes were blue, red, and yellow.

While these may not sound like novel elements, Taco Cabana sued Two Pesos when the chains began opening restaurants on the same turf, and won. The chain took its winnings and bought out the loser.

However, what makes something inherently distinctive from a legal standpoint is still subjective. Charles argues in her complaint that, by copying features like silver-colored pendant lights and barstools upholstered in wheaten fabric, her former employee is infringing on a recognizable design she developed.

Even without the Taco Cabana ruling, Charles’s suit has grounds. Restaurants have the right to sue former employees for intellectual property theft, just like if an employee of DuPont walked out with the formula for Teflon and started selling it.

You Can’t Rip Off Julia Child

Chefs are on less solid ground if they try to defend their edible creations. In the 1996 case Publications International, Limited v. Meredith Corporation, a federal court of appeals ruled that individual recipes in a cookbook are not entitled to copyright protection.

More specifically, the court ruled that recipes can’t be copyrighted as long as they are just lists of ingredients and directions for combining them without additional descriptive embellishments or commentary. Read: You can copy the recipe for Julia Child’s sole meunière, but you can’t publish her florid description of it as your own.

Restaurants can trademark their names, or the name of a menu item, but defending a mark is expensive, so many don’t defend their marks, or don’t for long.

While it’s not possible to copyright a specific recipe, attorney Charles Valauskas, who works with Homaro Cantu, executive chef and founder of Chicago’s Moto Restaurant, believes it’s possible to copyright certain expressions of a recipe, like how a dish is plated or presented. “No one’s trying to get a monopoly on ideas—courts wouldn’t grant a monopoly anyway—but you can control the expression of those ideas,” he says. That’s Valauskas’s theory, anyway.

Mad-Science Cooking = Mad-Science Patents

Valauskas’s client Cantu got a lot of attention for putting a patent notice at the bottom of Moto’s edible menu. Both declined to comment on it because the patent for the technique used to produce the “paper” is still pending. However, with 13 patents in the works, Cantu is one of the few chefs trying to apply a system more commonly used by industrial food producers to the restaurant business.

The criteria for obtaining a patent are much more stringent than those for a copyright. To receive a patent, a chef must demonstrate that there is no precedent for such an idea already

“I think it’s rare that somebody wakes up one day and has a completely novel idea about food.”

patented or in the marketplace. For example, you can’t patent a new kind of cookie, but if you come up with a wholly new technique for making cookies stay soft, that is patentable. (And it has been.)

Cantu says owning patents helps him sell his ideas to industrial food producers, who want to control as many aspects of a product as they can. Besides the edible paper, Cantu has applied for a patent for corkscrew-shaped utensils that hold aromatic herbs whose scent will purportedly alter the taste of what a diner’s eating. “Food producers have always drawn ideas for products from cutting-edge restaurants,” says Cantu. “Why should we leave that money on the table for someone else?”

It should be noted that Cantu cooks in the style known as molecular gastronomy, which depends heavily on mechanical, chemical, and, in Cantu’s kitchen anyway, laser manipulation of food. He says that what he is patenting is the processes by which food is created, not the food itself. “I think of Moto like the R&D lab at Pepsi or some big food company,” says Cantu. “We’re just a smaller, more agile research lab.”

However others argue that much of what Cantu does is still just cooking, which isn’t fundamentally different from what chefs have done for millennia. “I think it’s rare that somebody wakes up one day and has a completely novel idea about food,” says Wylie Dufresne, chef at wd-50 in New York (and another practitioner of molecular gastronomy). “I find it hard to think about patenting food, because we’re all standing on the shoulders of chefs who came before.”

And protracted legal fights are still an expensive proposition for small entrepreneurs. Charles says her suit could cost her about a quarter million dollars. And chefs risk opening themselves up to legal woes that are common in other industries, like patent trolls—opportunistic inventors who file vague patents and then sue people for infringing on their broad claims.

But some say that it might be worth the cost to bring more lawyers into the kitchen. “I’m not trying to own everything,” says Cantu. “I just think creative chefs ought to have the same rights and protection as the rest of the food industry.”

Illustration by Carl DeTorres

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