Friday 2 October 2015

Hard cheese on the menu - no copyright in a sandwich filling recipe or name

Back in February this year we reported on the case of Tomaydo-Tomahhdo LLC et al v. George Vozary et al (CASE NO. 1:14 CV 469  US District Court  Northern District of Ohio Eastern Division) where.a federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law after Rosemarie I. Carroll had taken legal action against a local rival offering similar dishes including sandwiches, salads, pizza and chicken wings, none of which were new or innovative and none contained unique or signature ingredients: The claimant's allegation that her book of recipes had been copied failed as Carroll had no protectable interest in any copyrightable works, in all events there was no evidence of copying. and according to the defendants, copyright protection did not extend to the recipes themselves - as at best IF the recipe book was worthy of copyright protection, it extended only to the layout and other artistic embodiments contained in the book itself. Judge Patricia A Gaughan agreed, holding that even if the recipe book had a copyright as a compilation (in the "order and manner of the presentation of the compilation’s elements") there was no copyright in the actual recipes: "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b)" adding "Certainly plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches". 

Now in a similar case, an appellate court has held that neither a chicken sandwich recipe nor its name is eligible for copyright protection in the U.S. In Colón-Lorenzana v. South American Rest. Corp., Case No. 14-1698 (1st Cir., Aug. 21, 2015) the claimant, a worker at a fast-food restaurant, suggested a concept for a new chicken sandwich, complete with his own recipe and a name - the “Pechu Sandwich": This consisted of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun. Subsequently, the restaurant began selling the sandwich and obtained Puerto Rican and federal registrations for the trademark. The claimant sued the fast-food restaurant, claiming that the restaurant had infringed his copyright in the sandwich’s recipe and its name, and committed fraud on the U.S. Patent and Trademark Office in obtaining its trademark registration for the mark “Pechu Sandwich.” The District Court granted the restaurant’s motion to dismiss the claims. Now the First Circuit affirmed the dismissal of the copyright claims, finding that neither the recipe nor the trade name fell into any of the eight enumerated categories of works available for copyright protection. The fraud claims were also dismissed.

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