Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...
By Tamlin Bason
Feb. 3 — Even if a recipe book can be protected as a compilation—and the court here doubted that this one could—the copyright protection would not extend to the individual recipes listed in the book, the U.S. District Court for the Northern District of Ohio held Jan. 29, granting summary judgment of noninfringement to a restaurant's former manager who was alleged to have stolen recipes.
Moreover, even if recipes themselves could be copyrighted—and they can't—then the plaintiffs' suit would still fail due to the dissimilarities between their dishes and the defendant's allegedly infringing dishes, the court said.
For instance, the plaintiffs alleged that their “chicken pesto salad” sandwich recipe was infringed, but, the court noted, the defendant's offering uses a different kind of cheese, “has regular—not pesto—mayonaise and, unlike plaintiffs’ sandwich, contains pecans and apples.”
“Certainly, plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches,” the court said.
The plaintiffs are the owners of Tomaydo-Tomahdo LLC, which operates a number of restaurants in and around Cleveland. The first Tomayto-Tomahdo restaurants were opened by then-partners Rosemarie I. Carroll and Larry Moore.
However, Moore sold his interest in the restaurants in 2007. When he sold his interest, Moore signed an agreement promising, among other things, to return menu and recipe ideas and not to poach employees.
George Vorazy was hired to manage the plaintiffs' various restaurants in 2004. He held that position until 2011, at which point he left to manage a new restaurant launched by Moore called Caterology.
In 2014, Tomaydo-Tomahdo filed the instant suit, alleging claims of copyright infringement, state law trade secret misappropriation, breach of contract and various other state law claims.
The copyright claim, which was the federal claim upon which jurisdiction in federal district court hung, asserted protection in the “Tomaydo Tomahhdo Recipe Book,” which Carroll said she created in 2012.
“Plaintiffs claim that defendants’ menus, offerings, recipes, and presentation of food are ‘virtually' identical to plaintiffs’ copyright,” Judge Patricia A. Gaughan said.
“Although copyright protection may extend to a recipe book or cookbook to the extent it is a compilation, the copyright protection afforded to compilations extends to the ‘order and manner of the presentation of the compilation’s elements, but does not necessarily embrace those elements,' ” the court said, quoting Publications Int’l Ltd. v. Meredith Corp., 88 F.3d 473, 481, 39 U.S.P.Q.2d 1444 (7th Cir. 1996).
Here, “There is some question as to whether the book could even be considered a compilation since it appears to be simply a collection of recipes each listed on a separate page,” the court said in a footnote. But:
To the extent plaintiffs have a valid copyright in the recipe book, the copyright protection extends to the layout and creative expression contained in the book. It does not extend to the recipes themselves.
Even if the recipes were somehow protectable, the differences between the menu items that were offered as proof of copying by the plaintiffs would defeat the infringement claim, the court said. The pesto chicken salad example was “but one of a number of examples contained in Carroll’s affidavit that show dissimilarities between the parties’ dishes,” the court said. It thus granted summary judgment of noninfringement.
The court declined to exercise supplemental jurisdiction over the remaining state law claims and thus dismissed the complaint.
Tomaydo-Tomahdo was represented by Daniel F. Lindner, Cleveland. The defendants were represented by Julie L. Juergens of Gallagher Sharp, Cleveland.
To contact the reporter on this story: Tamlin Bason in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Tom P. Taylor at email@example.com
Notify me when updates are available (No standing order will be created).
Put me on standing order
Notify me when new releases are available (no standing order will be created)