Pearl of Great Price: Now You’re Cooking with IP!
posted by Frank Pasquale
If you’re planning on opening a seafood restaurant soon, watch out for Rebecca Charles, owner of Pearl’s Oyster Bar. She’s suing rival Ed’s Lobster Bar for copying
“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.
A packet of oyster crackers at a seafood restaurant? What a creative genius!
Seriously, White has some rights based on Two Pesos v. Taco Cabana, a decision that recognized that “trade dress which is inherently distinctive is protectable under [federal law] without a showing that it has acquired secondary meaning”–i.e., that if the look of a restaurant is distinctive, it can sue others for copying the look even if no one particularly associates the look with its originator.
It looks like White is a veteran of more than one restaurant rivalry:
I listened as the regulars [at Pearl Oyster Bar] who stole my seat begged the chef to let them eat at Mary’s Fish Camp, which is owned by her former girlfriend. When they split, one kept Pearl, and the other, in one of the great defiant acts of New York restaurant life, opened a restaurant with nearly the same menu just blocks away.
I suppose revenge is a dish best served cold.
The one claim that the NYT article mentions that I think may be a loser is White’s complaint that Ed’s copied her Caesar salad.
She and her lawyers claim [Ed's] 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. . . . 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.
Seems to me like that Caesar salad would be pretty easy to reverse engineer–and reverse engineering has long been a way to lawfully acquire the know-how behind trade secrets. Moreover, it sounds like this idea is not exactly a secret–other folks may well have “extracted it” from the same source.
My hope in this area, as in so many others, is that we can learn from the French. By and large, they don’t use law to punish culinary copyists, they use norms. As von Hippel and Fauchart show, “the existence of norms-based IP systems means that the usage of information that is freely accessible and not legally protected may be nonetheless restricted to the benefit of innovators.” Magnifique!
Photo Credit: Monceau/Flickr. Will Charles pay royalties to this New Orleans oyster bar if it turns out to have opened before hers?
UPDATE: Mike Madison strikes an appropriately jaded note.