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Foodie Fights

Fight Brewing


Nespresso Patent Claims


Jean-Paul Gaillard, who was chief executive of Nestle’s Nespresso unit from 1988 to 1997, is now suing Nestle for patent infringement.  Gillard owns a business named Ethical Coffee Company, which makes coffee capsules for Nespresso machines.  In a complaint filed on January 20, 2015, Gaillard claims that Nestle introduced a harpoon mechanism in 2010, which stopped rival capsules from working properly in Nespresso machines, allegedly constituting patent infringement.  Ethical Coffee said it suffered at least $174 million in losses since this change.  

Nestle denies any claims of patent infringement and plans to fight the case in court.  Take a look at the patent in question here.


Snap Judgment for Diners

Do photographs of restaurant dishes constitute intellectual property?


Do you recognize this scene?  A couple’s meal arrives at their table, but instead of diving straight into their food, they pause, not for a prayer, but for a picture.  The practice of photographing restaurant dishes is commonplace nowadays, but often upsets chefs.  Some of them cite bad etiquette, marketing, or disturbance of dining ambiance.  A repeated complaint, however, is that photographing a dish and publishing that picture on the internet constitutes a violation of the chefs intellectual property.


Three-starred chef Gilles Goujon stated in a France TV Info report that online pictures of his food take away “a little bit of (his) intellectual property.”  Other chefs agree with this notion.  RJ Cooper, for example, states:  “If you're publishing something in a public forum without written consent, that's problematic”.  For this reason, some of them insert a “no camera” provision to their menus.


Unfortunately for them, there is no way for chefs to protect their works in the established categories of IP protection.  According to an article published by Eric von Hippel and Emmanuele Fauchart, chefs operate on a “norms-based” IP system, which is founded on community social norms.  Norms-based IP protection between chefs means:


  • not copying exactly an innovative recipe created by a colleague
  • not passing on recipe-related secret information without permission
  • giving credit to developers of significant recipes


Those who do not hold to these norms suffer informal consequences such as withholding of information or community exclusion.  Though this system works from chef-to-chef, the industry has failed to establish such a standard between chefs and their clientele.  The trouble is that there is no legal basis for claiming intellectual property infringement.  Dishes are not protected works or articles.  They are generally not permanent, fixated, utilitarian, or original enough to get around various design or copyright qualification requirements.  Even if the dishes had IP substinence, it would be difficult to prove that taking photographs of them truly constitutes infringement as opposed to fair use.


Take a look at von Hippel and Fauchart’s article here for more information.



Hey, that’s not Parmesan!


Doha negotiators revisit geographical indication issues


The council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a World Trade Organization (WTO) committee, revisited it’s Doha Round negotiations concerning geographical indications this past December.  Geographical indications are place names which identify a certain product such as “Champagne” or “Roquefort.”  These long-running negotiations have been inactive since 2011, but now the committee aims to complete their talks and set up a geographical indications register for wines and spirits by July 2015.  The council is also charged to debate higher levels of protection beyond wines and spirits.


Click here to read more details about the December 2014 meeting and here to learn more about geographical indications.



The Proof is (not) in the Paper


In Teashot v. Green Mountain Coffee, Federal Circuit Affirms that Punctured Material is not the Same as Water-Permeable


In a recent case, Teashot v. Green Mountain Coffee, the Federal Circuit affirmed that Green Mountain Coffee’s K-Cups do not infringe Teashot’s disposable tea pods.  T-Shots products is a sealed pod made of water-permeable material (essentially tea wrapped in coffee filter paper).  K-Cups, on the other hand, are made of impermeable material and must be punctured in order to brew coffee.  Teashot’s argument was that the pods become “water-permeable” once punctured.  The courts did not agree with this argument.


Read Dennis Crouch’s review of the case here for more details.  You can also read the decision here.



The Man Who Knew Too Much About English Muffins

Bimbo Bakeries USA, Inc. v. Chris Botticella, 10 CV-0194 (D.C. E.D. PA  Feb. 9, 2010)

Bimbo Bakeries owns many famous brands, including Thomas', the famous makers of English Muffins.  Chris Botticellia, an employee of Bimbo's was one of less than ten people in the world with full knowledge of the famous Thomas' English Muffin recipe.  When Botticella left to work with Bimbo's major competitor, Hostess, Bimbo filed suit claiming that Botticella had misappropriated Bimbo's trade secrets.  The Court enjoined Botticella from disclosing any of Bimbo's trade secrets and issued a temporary and preliminary injunction.  Botticella has appealed the Court's decision, but the Bimbo case demonstrates that trade secret protection may be available to protect unique and valuable recipes.


Transfat Love and War

HAG, LLC v. B & I Enterprises, LLC  10 CV-80127 (D.C. AZ Jan. 26, 2010)

Not everyone hates transfats. Heart Attack Grill, self-described as having a "name that connotes a catastrophic medical condition" is proud of the high caloric foods it serves. Featured on the Travel Channel show, Extreme Pig Outs, Heart Attack Grill is known for dishes such as its "Triple Bypass Burger" and features waitresses dressed as nurses, hospital-style wrist bands and refers to its patrons as "patients."

When Heart Stoppers Sports Grill opened a similar medically-themed restaurant, Heart Attack Grill filed suit, alleging that Heart Stoppers had copied its trade dress, right down to signage offering free food to anyone weighing over three hundred and fifty pounds.  Heart Attack also alleged that Heart Stoppers had copied the main aspects of its medical theme.  The case is pending, but supports that certain aspects of a restaurant theme, taken together, may be subject to trade dress protection.


Steamed About Kitchen Product Design

Chef'n Corp v. Trudeau Corp.  C08-1135 MJP (W.D. WA 2008)

Washington based Chef'n Corporation designs kitchen products that are not only functional, but are "unique, memorable and artistic."  To that end, Chef'n had designed a silicone vegetable steamer that performed the function of a traditional metal vegetable steamer, but which was more aesthetic.  Chef'n applied for a design patent on the ornamental design for its steamer and was granted U.S. design patent No. D556,503. When Trudeau began marketing its own version of a silicon vegetable steamer, Chef'n filed suit. The Court applied the test from Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed.Cir. 2008)(en banc) and denied Chef'n's request for a preliminary injunction against Trudeau.  The Court noted that a visual comparsion of the '503 design and Trudeau's steamer demonstrated certain similarities, but that an ordinary observer with knowledge of the prior art would not confuse the two steamers. The Court also noted that, although both steamers, were a significant departure from the prior art, Trudeau had not infringed Chef'n's deisgn according to the standard set forth in Egyptian Godess.  The Court did note, however, that, where an accused design copies a particular feature of a claimed design that departs conspicuously from the prior art, the accused design is naturally more likely to be regarded as deceptively similar.


The War of the Hot Wings

Buffalo Wings Factory, Inc. v. Mohd  2008WL 4642163 (E.D. VA 2008)  Virginia based Buffalo Wing Factory alleged that its former employees’ new business, Buffalo Wing House, misappropriated Wing Factory’s trade secrets.  Specifically, Wing Factory claimed that Wing House copied the overall look and feel of its restaurant including the recipes and names of its wide assortment of eclectic hot wing sauces. The case eventually settled. Although it may be difficult to protect recipes and menu items per se, this case supports that protection may be available for the total look and feel of a restaurant, which may include particular menu items, decor and dish presentation.


SeaFood Smackdown

Powerful Katinka, Inc. v. McFarland, 2007 WL2064059 (S.D.N.Y. 2007)

The Pearl Oyster Bar of New York City, owned by Rebecca Charles, offers a number of ‘signature dishes,’ such as its popular  Caesar salad, which includes special touches like English muffin croutons. The Pearl also features a white marble bar, gray paint, wainscoting and straw-back chairs. Charles’ sous chef, Ed McFarland, left Pearls and opened Ed’s Lobster Bar restaurant in a nearby neighborhood.  Charles claimed that McFarland copied the look and feel of The Pearl, including its signature Caesar salad, and filed suit.  The case later settled, but supports that signature dishes, furniture and decor may contribute to the overall look and feel of a restaurant, which may be protectable trade dress.


Click here for more IP news.