recipes – Techdirt (original) (raw)

Louisville Courier-Journal Wins 'Derby Pie' Trademark Dispute

from the by-a-furlong dept

Last month, we discussed a crazy lawsuit brought by Alan Rupp, owner of Kern’s Kitchen and the trademark for the fairly famous “Derby Pie.” Rupp has a reputation for policing his trademark aggressively, having gone after a myriad of online publications and blogs for publishing their own recipes, leading to the EFF at one point posting its own recipe for a “censorship pie.”

But threatening blogs is one thing. Going after an established newspaper like the Louisville Courier-Journal is something quite different. Especially when that paper’s only actions were, (1) publishing its own recipe for a “derby pie” that differed from that of Kern’s Kitchen and, (2) reporting on the existence of other storefronts that sold derby-pie-flavored things. The paper had very clear First Amendment protections for its writings, not to mention that it wasn’t using the mark in any kind of commerce. The courts have now agreed, with the latest appeal being tossed.

The Louisville Courier-Journal’s use of the words “derby pie” in a recipe and article featuring variations of the dessert did not infringe on a bakery owner’s trademark rights, the Sixth Circuit ruled. An unpublished decision released Monday by the Cincinnati-based appeals court found the 2017 articles used the term in a non-trademark fashion and therefore did not violate the Derby Pie trademark owned by Alan Rupp.

As far as the court’s reasoning, it never even got to the First Amendment questions before tossing this thing in the trash. Instead, the unanimous ruling simply pointed out that the LCJ wasn’t using the mark in a commercial fashion and therefore wasn’t infringing on Rupp’s mark. Going further, the courts pointed out that the manner in which the paper used the term resulted in no reasonable chance that anyone would be confused as to any source of goods or associations to Rupp or his bakery. In the below, Siler is the judge who wrote the opinion.

The first article included a recipe for derby pie, but Siler emphasized the article “does not denote the recipe for the Derby-Pie but a recipe for a ‘Derby pie’ … and simply informs the reader of the type of pie – a chocolate-walnut pie – that the reader can make from the recipe provided.” Siler also pointed out the article identified the Captain’s Quarters restaurant as the source of the recipe on at least two occasions, and the recipe in question was substantially different from the Rupp family recipe in that it included bourbon and excluded vanilla.

“No reader,” the judge wrote, “could possibly think that a so-called ‘Derby pie’ containing bourbon and no vanilla came from the company or companies associated with Derby-Pie.”

The opinion goes on to note that the article about how other companies were selling similar items, but not pies, could “not possibly” come to think that any of those companies were related to Rupp or Kern’s Kitchen.

Again, the court never even got to the First Amendment protections the LCJ has in all of this, which would have been yet another reason to toss this case in the trash. In the end, Rupp’s lawsuit was always a longshot that very few would have bet on. Now that it’s dead, hopefully it will find its way to the glue factory for good.

Filed Under: alan rupp, derby pie, recipes, trademark
Companies: kern's kitchen, louisville courier-journal

from the though-you-can-indict-a-ham-sandwich dept

There’s a famous line about grand juries and their willingness to indict anything prosecutors put in from of them, that they will “indict a ham sandwich” (coined by a judge who was later indicted himself in an effort to prove the point). But, someone apparently asked, can you copyright a chicken sandwich? This apparently serious legal question was recently taken up by the First Circuit appeals court to review a dispute about who owns the idea for a chicken sandwich.

The backstory is that a guy named Norbeto Colon Lorenzana, working for Church’s Chicken (owned by South American Restaurant Corporation, or SARCO) in Puerto Rico, thought that the restaurant should add a chicken sandwich to the menu. His bosses tested out some recipes and settled on the following recipe (which does not seem all that original): “a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.” Church’s dubbed this the “Pechu Sandwich” and apparently it sold pretty well at Church’s Chicken. Colon apparently decided that because it was his idea, he deserved a cut of every sale. And thus he sued for trademark and copyright violations (sorta, as you’ll see)… because popular culture keeps falsely telling people that “intellectual property” must “protect” any possible “idea” they ever come up with, no matter how common or obvious it is, and no matter whether or not those ideas are even remotely protectable.

The lower court correctly laughed this out of court, and Colon appealed, only to find the appeals court similarly unamused. Not surprisingly, apparently Colon’s original complaint was so devoid of actual legal arguments that the court decided to “generously glean a claim for violations of the Copyright Act and a second claim under the Lanham Act for trademark infringement.” As the ruling notes in a footnote, Colon didn’t actually state either such thing, but the court said he claim close enough, and then in a reply to the company’s motion to dismiss, Colon clearly was relying on copyright law, so it’s a “copyright claim” even if the original complaint failed to make such a claim. The court also notes that “Colon does not seize upon the generosity of the district court and fails to develop any argument in his appellate briefing related to trademark infringement,” so it drops the (bogus) trademark arguments entirely.

Either way, even with the court “generously” saying there’s a copyright claim, there isn’t actually a copyright claim, because this is a freaking chicken sandwich.

Contrary to Col?n’s protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; neither the recipe nor the name Pechu Sandwich fits any of the eligible categories and, therefore, protection under the Copyright Act is unwarranted. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work…. As for the “Pechu Sandwich” moniker, we have previously held that “copyright protection simply does not extend to ‘words and short phrases, such as names, titles, and slogans.'”

The court separately rejects Colon’s claim that SARCO registered the trademark in the sandwich by fraud (apparently in not giving it to him or something). The court again has trouble figuring out what he means, because he has no explanation:

We need not linger over the potential elements of a Section 38 claim or the application of Rule 9(b) because the complaint fails for a more fundamental reason. It simply fails to sufficiently allege that any false statement exists. Colon merely offers conjecture about SARCO’s actions and intentions. He avers that SARCO “intentionally, willfully, fraudulently and maliciously procured the registration of Plaintiff’s creation in the Patent and Trademark Office without his consent and . . . with the intent to injure the Plaintiffs,” but the complaint is silent as to any facts to support such conclusions.

These kinds of lawsuits are what you get when you keep telling people that ideas are “ownable” and that anyone who does anything with your idea must be somehow infringing on your rights. Thankfully, the courts have quickly dumped this, but it’s still a waste of time and resources.

Filed Under: 1st circuit, chicken, chicken sandwich, copyright, noberto colon lorenzana, ownership society, pechu sandwich, recipes, trademark
Companies: church's chicken, sarco

DailyDirt: Recipes Analyzed By Algorithms

from the urls-we-dig-up dept

Algorithms are data mining every aspect of our lives and the world around us — to pull out interesting bits of information that we should act on. Companies like Google and Facebook come up with algorithms to figure out when to put ads in front of our eyes and how to display pertinent information (sometimes at the same time). Other algorithms are apparently watching what we eat, and trying to highlight what makes food taste good for us or how to formulate the “perfect Pepsis” or find unexpected recipes or flavor combinations. Here are just a few examples of software-based culinary art.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: ai, algorithms, artificial intelligence, cognitive computing, cognitive cooking, cuisine, data mining, flavors, food, recipes, watson
Companies: ibm

DailyDirt: How To Cook Simple Stuff…

from the urls-we-dig-up dept

There are all kinds of cooking shows and recipe books, providing a vast and endless library of ways to make any meal you can think of. With this flood of information, the simplest meals can seem daunting because there are so many different recipes and instructions. There really is no single correct way to do anything, but some instructions are easier to remember than others. Here are just a few examples.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: bacon, cooking, eggs, food, how-to, pasta, recipes

Pizzeria Attempts To Trademark The Flavor Of Pizza. Yes, Seriously.

from the savor-the-flavor dept

Trademark, while generally one of the better forms of intellectual property as used in practice and in purpose, can certainly still be abused. It can also fall victim to an ever-growing ownership culture that seems to have invaded the American mind like some kind of brain-eating amoeba. And that’s how we’ve arrived here today, a day in which I get to tell you about how there is currently a trademark dispute over the flavor of pizza. And no, I’m not joking.

New York Pizzeria, Inc. is the plaintiff in this case that was brought after its former president allegedly conspired to create a knockoff restaurant chain called Gina’s Italian Kitchen using NYPI’s recipes, suppliers and internal documents. The lawsuit includes an allegation of a computer hack, but we’ll focus on the judge’s analysis of the trademark claims.

“Intellectual property plays a prominent and growing role in our Information Age economy,” opens Texas judge Gregg Costa’s opinion this week. “In this case, though, the plaintiff seeks intellectual property protection for something quite traditional: the meal one might order at a neighborhood pizzeria.”

So, we have two pizza shops in a fight over ingredients and flavor. What NYPI is claiming is specifically centered around the resulting flavor of the two pizzas as a matter of trademark infringement. The claim is that their flavor is distinct. So distinct, in fact, that consumers would recognize it as solely NYPI’s, even if coming from Gina’s Italian Kitchen. The judge, as it turns out, was exceptionally good on this claim.

“As with colors, it is unlikely that flavors can ever be inherently distinctive, because they do not ‘automatically’ suggest a product’s source,” he writes. But even if pizza fans can close their eyes, bite into one, and recognize a slice of New York Pizzeria when they taste it, Judge Costa gives a second reason why trademark protection can’t extend to taste: “Functional product features are not protectable,” he writes.

The judge points to a prior decision at the Trademark Trial and Appeal Board as precedent. a pharmaceutical company attempted to gain a trademark on the orange flavor of its medicine, but that was ruled out-of-bounds when the TTAB decided that by flavoring a disagreeable taste, the company merely “performs a utilitarian function that cannot be monopolized without hindering competition in the pharmaceutical trade.”

Judge Costa goes on to note that the scrutiny of trademark law applying to the flavor of pizza logically should be much greater than even the flavor of medicine. It’s a very nice way of calling this whole thing silly and telling everyone to go home. The case has been summarily dismissed, thankfully. Were this sort of dispute allowed to find any kind of foothold, a well-functioning foods industry could be tossed completely for a loop. The trademark-able flavor angle would essentially be an end-around the fact that copyright doesn’t apply to recipes. After all, if you can simply protect the end result of the recipe, what would be the difference?

Filed Under: flavor, pizza, recipes, trademark

DailyDirt: Additional Challenges To Making Dinner

from the urls-we-dig-up dept

For some folks, boiling water isn’t a simple task. Others can whip up a delicious meal before a pot of water can boil. Cooking skills can be amazingly good or mind-bogglingly bad, but there are some people who just don’t want to do things simply, and they turn cooking into a kind of obstacle challenge. Sure, there are reality TV shows that put ridiculous time pressures on cooking a 7-course meal or restrict ingredients to rare delicacies. For pure fun (or sometimes necessity…), though, some cooks are forgoing a stove or conventional cooking devices to make their meals. Here are just a few examples.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: coffee maker, cooking, dishwasher, food, poaching, recipes, rice cooker, steamer

What The Continuous Flourishing Of New Cocktails Can Teach Us About Intellectual Property

from the i'll-have-another dept

Ok, time to make a brief admission, oh Techdirt faithful. You see, we talk a great deal on this site about intellectual property and, while it certainly isn’t a 100% thing, the most common topics in the discussion are movies, music, and books, particularly when it comes to copyright. Here’s the problem: I’m not much of a customer for any of those things. I listen to almost no music as a talk radio junkie, my movie-viewing habits amount to seeing perhaps 3 films or so a year, and I write way more than I read these days. Even then, my reading habits tend to be from sources that are either free or in the public domain. So, while I care a great deal about intellectual property laws in this country, I tend not to have much interest in the practical applications as discussed here.

But that doesn’t mean I don’t still run into an IP law topic that does involve something I love dearly, something for which I could find no replacement in this little life of mine. Something that, were it to find itself suddenly locked up in a way that prevented me easy access, I might just lose my mind. I am speaking, of course, about alcohol. Cocktail recipes, thankfully, are famously not covered by copyright, which is why it’s fun to see a legal explanation about how they’re flourishing anyway.

If it has been accepted for at least two centuries that – absent state intervention – the fruits of intellectual labor are non-rivalrous and non-excludable, who but “a blockhead” would invest effort in concocting a commendable cocktail? Why, the free-riding barman next door is simply going to pilfer your tipple, put a foolish little umbrella in it and call it his own! Hence, new cocktails ought to be in scarce supply. But the problem is, they’re not. Even after we largely wiped out our collective wisdom of creative imbibing with 14 years of Prohibition, we’re knee-deep in cocktail recipes. Why is this?

Part of the answer can be found in Kal Raustiala and Chris Sprigman’s wonderful book, The Knockoff Economy, which lawyer Matt Schruers goes into with a nice little nod. It isn’t just the absence of copyright that separates the world of cocktails from major media entertainment, the entire culture of alcohol and bartending is like a music and movie bizarro world, where the entire culture depends on freely sharing drink recipes, garnishment strategies, and success rates with different drinks. The result is not only that great drinks find notoriety, new or otherwise, but the other result is industry norms in bartending springing up organically to take the role of what otherwise would be government intrusion.

Like fashion, the industries for both stand-up comedy and culinary art, including cocktails, see considerable development of new ideas. In both cases, industry norms – not laws – govern copying. The formal code of ethics of culinary professionals, Raustiala and Sprigman note, requires attribution. (This has not forestalled the occasional demand for a sort of recipe copyright, designed to overturn the conventional rule that recipes do not qualify for copyright.). A second cause for cocktail innovation is that recipes sell the product. Here, the intellectual labor is undertaken at a loss to promote a spirit. Today, many spirits manufacturers employ “brand ambassadors,” generally bartenders, to evangelize their product by devising and demonstrating new applications for it. Third, cocktails may be developed for reputational gain. A bartender may want his work to spread, because being known for his craft draws patrons to his establishment, and improves his job marketability. Of course, this why in cocktail arts, as in cuisine, attribution norms receive greater emphasis.

If any of this is beginning to sound familiar to you, it should be, because this is the exact route the music and movie industries are being pushed into. You could replace “cocktail” above with “recorded music” or “film” and most of the statement would still work without any further edits. Musical sharing and attribution to drive up notoriety, with recordings given away to promote scarce seats at concerts, while creative output is achieved to build up the brand as well. The synergy is quite striking.

But the real point is that creative output is flourishing without copyright. Of course no industry is exactly the same as another, but who is really ready to say they’re sure the same wouldn’t occur with music and movies? After all, copyright is supposed to “promote the progress” and it seems like there are places where we judge it to be unnecessary to achieve that goal. Why not try it in music and movies?

Filed Under: bartenders, competition, copyright, creativity, drinks, intellectual property, mixed drinks, recipes

DailyDirt: DIY Soda (Pop Or Whatever You Call Carbonated Beverages)

from the urls-we-dig-up dept

Making your own carbonated soft drinks has a few benefits — from knowing where all the ingredients came from (eg. no brominated vegetable oil) to getting the satisfaction of creating your own custom flavoring. It’s not quite as simple as punching a button on a vending machine, but it’s not exactly rocket science, either. Here are just a few links on being your own soda jerk.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: beverage, flavoring, food, open cola, pop, recipes, soda, soft drinks
Companies: coca cola, pepsi, sodastream

DailyDirt: DIY Junk Food

from the urls-we-dig-up dept

Is it still junk food if you make it yourself? If you feel guilty about buying junk food and have lots of time on your hands, here are a few links that might inspire you to try recreating some popular snacks at home.

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: cheez-it, food, fries, fritos, hostess, junk food, mcd, oreos, recipes, twinkies
Companies: mcdonald's

Campbell's Hack The Kitchen Shows Anyone Can Have An Innovative Idea, And Anyone Can Screw It Up

from the ideas-and-execution dept

We’re just about to start experimenting with a variety of new advertising setups here at Techdirt, which means we’ve been doing a lot of brainstorming about opportunities for creative, interesting campaigns in keeping with our philosophy that good advertising is good content. One thing we’ve been noticing over and over is that the most innovative online marketing pushes don’t just come from the usual suspects (tech companies and online services) but also from unexpected places—like a century-old soup company.

Campbell’s is running a very cool campaign called Hack The Kitchen, for which they’ve developed a full-fledged recipe searching API that pulls data from their Campbell’s Kitchen repository.

This is your opportunity to revolutionize dinners everywhere: Develop a breakout idea based on the Campbell’s Kitchen API that helps people decide: what’s for dinner tonight?

After seeing all the ideas, we’ll choose up to thirty semi-finalists and give them our API for three weeks to bring their ideas to life.

Up to ten finalists will then be invited to present their projects at Google’s HQ in NYC to compete for the championship and launch their ideas into the world.

It’s a fantastic concept, and the API looks genuinely useful. Not only is the contest itself a great marketing opportunity, it’s setting Campbell’s up for ongoing exposure through the apps that are developed.

But, having said how cool this is from a marketing perspective, it’s time for the disclaimer—and it’s a big one. The moment you get past the initial idea and into the details, things really start to fall apart from an innovation perspective. Firstly, as you probably noticed, the API is not being opened up to the public—only to the contest semi-finalists. That severely limits the amount of innovation that will happen, and the amount of exposure the company will get as a result—it also limits the number of developers that will even want to participate. Unfortunately, Campbell’s reason for this is clear: they intend to take total ownership of anything that comes out of this campaign.

In fact, they are so concerned about this that the fine print states the cash prizes ($25,000 plus a development contract for the winner, $10,000 to runners up) are not prizes at all—they are a fee for your work:

*Paid by Cambell for ownership of all ideas, concepts, code and intellectual property.

Setting aside the fact that you cannot own an “idea”, this just stinks. On the one hand, it’s not uncommon for creative contests to take ownership of submissions (though that’s hardly universal), but it is the complete antithesis of what appears to be the spirit of this campaign: hacking and innovation. This is actually a big problem with corporate-run hackathons and coding contests, which frequently demand total ownership at the end. No smart developer with a truly great app idea would give it away for 25,000forthecopyrightplusanother25,000 for the copyright plus another 25,000forthecopyrightplusanother25,000 to build it—a popular app with a long tail can be worth way, way more than that.

There’s nothing wrong with Campbell’s trying to get an official app or two out of this—but when you look closely, the people who are submitting these ideas don’t seem to be getting much in return. They want everyone to submit their best ideas for free, then they want 30 people to actually build those ideas—then Campbell’s will plunk down 10ktotaketotalownershipofanythat“couldbedevelopedbyCampbellinthefuture”(thusstoppingallthoserunners−upfrommovingforwardwiththeirappsindependently,andpresumablycuttingofftheirAPIaccess)andtoss10k to take total ownership of any that “could be developed by Campbell in the future” (thus stopping all those runners-up from moving forward with their apps independently, and presumably cutting off their API access) and toss 10ktotaketotalownershipofanythat“couldbedevelopedbyCampbellinthefuture”(thusstoppingallthoserunners−upfrommovingforwardwiththeirappsindependently,andpresumablycuttingofftheirAPIaccess)andtoss50k to one developer to make their app market-ready. The winner gets an okay deal, while the runners-up pretty much get screwed.

So, for the next time Campbell’s or another company tries a genuinely cool and innovative idea like this, I suggest a few tweaks to make the execution less distasteful. Firstly, open the API up to everyone, and leave it open; have sensible limitations like any public API, but let people build what they want. Secondly, give away modest but genuine prizes with no strings, while offering a bounty for ideas that you want to own without making that rights transfer a requirement of the contest. Thirdly, promote the submitted apps in a public gallery, and encourage all developers to move forward with building, deploying and marketing their apps—you’ll get a hell of a lot more exposure, and you might even find your API becoming the de facto standard for such development.

In the mean time, to anyone eyeing the contest while an idea ferments in their brain, I suggest letting the Friday deadline for submissions lapse, and looking into some of the free and open recipe APIs to power your app.

Filed Under: advertisements, advertising as content, api, content as advertising, contests, recipes
Companies: campbell's