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SAFEGUARDING CUISINE WITHIN THE RUBRIC OF

INTELLECTUAL HOME LAW:

SHOULD THE LAW ENJOY A BIGGER POSITION IN THE KITCHEN?

Emily Cunningham ∗

Cite as 9 J. HIGH TECH. D. 21 (2009)

I. Advantages

In 06 2007, Rebecca Charles, chef-owner of Treasure Oyster Club (" Pearl”) in New york city City's Greenwich Village, sued her past sous cook, Ed McFarland, now chief cook and part owner of Ed's Lobster Bar in New York's SoHo community. 1 In her complaint, Charles supposed that McFarland had pirated Pearl's menu, recipes, dish presentations, décor, " appear and feel, ” all of these Charles thought amounted to a flagrant misappropriation of both her and Pearl's perceptive property. two The fine detail that reportedly irritated Charles most was a dish in McFarland's menu called " Ed's Caesar. ” three or more According to Charles, McFarland had duplicated her individual Caesar salad recipe, constructed with English muffin croutons and a coddled egg shower, which Charles maintained was a signature dish at Treasure. 4

The culinary and restaurant industrial sectors billed Charles's suit, which settled away of courtroom on undisclosed terms in April 08, 5 while among the first of its kind. 6 In the past, chefs and restaurateurs got invoked mental property principles to defend particular aspects of all their restaurants, but most had stopped in short supply of filing fits, and handful of had attemptedto argue perceptive property thievery in such totality. 7 While Charles maintained that her case was about guarding her cafe as a whole and not about lounging claim to a kind of food, her lawsuit

J. D. candidate 2009, Suffolk College or university Law College.

1 . See Complaint in 1: several, Powerful Katinka, Inc. v. McFarland, 2007 WL 2064059 (S. G. N. Y. 2007) (No. 07 CV 6036).

2 . Id.

a few. Pete Water wells, Chef Commun Over Perceptive Property (the Menu), And. Y. TIMES, June 27, 2007, at A1. 5. Id.

five. Pete Wells, Chef's Legal action Against an ex Assistant is definitely Settled Out of The courtroom, N. Sumado a. TIMES, Interest. 19, 08, at B2.

6. Eater. com, Pearl Oyster Pub v. Ed's Lobster Bar: Day a couple of, archived by http://www.webcitation.org/5WlBtVS5n.

several. See Bore holes, supra be aware 3.

Copyright laws © 2009 Journal of High Technology Regulation and Emily Cunningham. Most Rights Arranged. ISSN 1536-7983.

22

RECORD OF HIGH TECHNOLOGY LAW

[Vol. IX: No . 1

sparked intense debate in the culinary globe, particularly to find intellectual property rights and cuisine itself. 8

This Note explores intellectual home laws in the culinary arena and investigates whether fake of a chef's cuisine constitutes intellectual property theft. This Note will establish that intellectual home protections including copyright, brand and trade dress, tend not to encompass dishes and cooking creations, neither should they. Using copyright and trademark regulations to protect food will slow down competition between chefs and restaurants, decrease creativity and innovation, and undermine the culinary industry's norm of sharing. A rise in such protections also will do not enhance chefs' profits, observance will be difficult, and lawsuit will be costly. The Take note will demonstrate that while obvious law may protect highly innovative dishes and techniques of food preparation, most chefs may very well not make use of the patent program because of its expense and stringent patentability specifications. In addition to well-established norms in the culinary community, existing legal rights such as trade secret legislation, private contracting and the imposition of fiduciary duties present adequate safety measures for a wedding party proprietary information.

Part I actually of this Take note presents history related to the difficulties discussed over, addressing the conventional culture with the culinary sector, the significance of the convergence of technology and cooking, plus the growing interest in legal protection for culinary creations. Portion II models forth lawful and case rules standards pertinent to the concern, discussing principles of copyright, trademark, transact dress, obvious, and trade secret rules. Part III of the Notice...

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