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Suppose General Tso had trademarked General Tso’s Chicken?
By Jennifer 8. Lee | June 27, 2007
Peter Wells writes about intellectual property skirmishes among chefs today The New York Times, specifically focusing on a lawsuit between Rebecca Charles of Pearl Oyster Bar and Ed McFarland, her former sous chef and owner of Ed’s Lobster Bar in Soho.
But excellent and powerful food ideas, it seems to me, seem to be hard to limit. tend to go from top down (Nobu’s rock shrimp, General Tso’s chicken) or bottom up (burritos, fried rice). Can you really stop a popular idea? Perhaps the name, like Starbucks’ frappuccino, which I learned in Taylor Clark’s Starbucked is trademarked.
Chinese restaurants in America have quite a different attitude (reflecting perhaps a different attitude towards intellectual property in general?). General Tso’s chicken is not a dish that anyone knows in China. The recipe, as we know it today, was actually introduced in New York City during the 1970s (more on that later) but it spread very rapidly because the Chinese American restaurant owners copied each other. Same goes with chop suey and fortune cookies. (All this in my book).
I rather find this notion of trying to “patent and trademark” food intellectual property rather intriguing. (Another area where this is emerging is fashion, though so far with little success). I don’t know the legal underpinings of it, but my friend, Columbia Law professor Tim Wu, is quoted in the article saying 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.â€(He seems to appearing in everything IP related these days. I teased him that this time he appeared after the jump.)
I emailed him
me: can food really be IPed?
him: ” Generally hard for food to get IP protection. Recipes cannot be copyrighted; patent is unlikely. You can get protection for your logo — i.e., McDonalds or Coca Cola. However protection for the look and feel of a restaurant — Trade dress protection — need to be inherently distintcive or have secondary meaning; and need to show actual consumer confusion (i.e., I thought I was in restaurant X, but I’m actually in Y). Trade secret protection is possible if, for example, you force your chefs to sign Non-Disclosure Agreements; you actually have secrets, and you take measures to protect them.”
me: what about those weird techniques to create food foam, a la The Fat Duck in England?
him: Potential patent
me: what about the name of a dish. trademarked. like Big Mac or Frappucino?
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