Pizzeria asks judge to find rival's flavor to be trademark-infringing


#1

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#2

If one wanted to protect a recipe, I think that a patent (possibly a design patent) would be required.


#3

Trade secrets work just fine to protect recipes, most of the time.


#4

It’s well known that the formula for Coca-Cola is a trade secret, so such limitations can exist. However, it looks like making a pizza isn’t secret enough for this to work.


#5

The recipe for the sauce (and the dough, and probably several other ingredients) should be protected by trade secrets… So I’m not sure why they tried to trademark the flavour.


#6

Since this guy had access to the recipe, then it is the recipe, not the flavor, which is infringing. He is not going to convince anyone that the similarity is a coincidence.

But “trade secret” does suggest some interesting eventualities. If the flavor was subjectively similar, but from a different recipe, they’d have no case. Also, I wonder about people happening upon the same or similar recipes for a thing independently. If I do not access somebodys “secret”, how could the similar results be claimed as infringing?


#7

But only if they took steps to ensure its secrecy and the ingredients could not be discovered naturally by others through independent discovery or even reverse engineering. And with food prepared from natural ingredients, top chefs can do a great deal of reverse engineering just from taste alone. I think they had to get creative because the trade secret litmus test wasn’t going to pass.


#8

I think they were screwed the moment that someone noticed that a trademark registration requires an image.


#9

IIRC you can’t copywrite, patent, or trademark the recipe itself, only the text used to publish that recipe.


#10

One of many many major problems with IP in general in its current form. If someone invents something independently of having access to the original invention they are out of luck. There are no provisions for independent arising thoughts, nor for co-arising thoughts. In a world with this many people and very little being truly original, that is a major issue. Of course current IP law isn’t really meant to protect creators so much profit intellectual land barons. Not sure how that applies to this case, but in the world of IP you can quite easily stumble into other people’s intellectual property, in fact creating anything new is like navigating a mine field. imho.


#11

True, of course, but I am guessing that “trade secret” needs to be defined differently than trademark or patent. The “property” would likely be the secret itself - assuming that it is even a secret in the first place. Of course all manner of shenanigans probably can and do occur but I imagine that trade secrets might be a bit more difficult to establish and defend.


#12

Prior art is a bitch when it comes to trying to patent recipes, though.


#13

But recipes aren’t protected intellectual property. There’s no such thing as an “infringing recipe.” (You could try to patent it, I suppose, but a patent must be “novel” and “nonobvious" and the fact that you’re doing a minor variation - at best - of something pre-existing shoots that out of the water.) If you want to keep a recipe to yourself, you keep it secret and hope nobody figures out the ingredients. If someone figures out how to replicate it, it doesn’t matter how they do it - i.e. they don’t need to convince anyone else the similarity is coincidental.


#14

Recipes can be protected as trade secrets though. Typically this happens with “industrial food products” where they are confident that without the exact amounts of 40 different materials and their flavor chemists, nobody would guess it. So it might protect something like well-known examples such as Coca-Cola or the KFC fry blend - but hard to apply to a regular dish such a pizza, sandwich, entree, etc. This could protect a company against espionage or competition with former employees (such as this case alleges). But I don’t know what kind of burden of proof they expect for declaring something a trade secret.


#15

A trade secret is defined differently because patents require a public description and pubic scrutiny of the thing being patented. Publishing a trade secret defeats the secrecy. Therefore, something can’t be patented and a trade secret at the same time.

The trade off is a patent becomes public domain after a certain amount of time. A trade secret lasts forever as long as no one discovers the secret on their own using independent means, but the risk is the discovery of the secret may occur sooner than a patent expires. Trade secrets also have the force of federal criminal law to defend them if someone illicitly obtains your secret from your own files or employees. But you also have to be able to prove you went to great lengths to keep that information secret.


#16

At some level this is another case (most of the are copyright cases) of somebody trying to get patent-like protections without going through the trouble and expense of getting a patent…


#17

My mother always suspected a couple people in the family tree of gladly giving up their recipes, but sabotaging them with missing steps or ingredients. They never tasted the same. Then again, Mom’s chief culinary competence was boiling things. A lot.


#18

SWEDISH LEMON ANGELS

ingredients

1 egg
1/2 cup milk
5 tsp. baking soda
1/2 tsp. vanilla
1 cup lemon juice (fresh is best)
1 1/4 cup sugar
1 cup all-purpose flour
8 T. butter or margarine, melted

preparation

PREHEAT OVEN TO 375 DEGREES

  1. In a small bowl beat the egg until foamy.

  2. Add the milk and vanilla and blend well.

  3. Add the baking soda, one teaspoonful at a time, sprinkling it in and beating until the mixture is smooth and the consistency of light cream.

  4. Add the lemon juice all at once and blend into the mixture. Stir, but do not beat (you want it creamy, but without a lot of air).

  5. The mixture will congeal into a pasty lump. Scoop it out of the bowl with a spatula and spread it on a floured surface.

  6. Sift the flour and 3/4 cup of the sugar together and use the fingertips to work it into the egg- lemon mixture.

  7. With a floured rolling pin, roll the dough out 1/32’ thick and with the tip of a
    sharp knife, cut out ‘angel’ shapes and twist the edges up to form a shell-like curve about 3/8" high. Sprinkle on the remainder of the sugar.

  8. Brush each ‘angel’ with melted butter.

  9. Place the angels one inch apart on an ungreased baking sheet and bake for 12 minutes or until golden brown.


#19

Sounds like a greenhouse gas kitchen. Are these life-size angels? I was tempted to change 5 tsp. of baking soda to 5 ml. But I’ll try it your way, first. Find out if it’s safe for kids to try this at home. I didn’t have time to do the Hallowe’en shopping, so however it turns out, this is what the kids are getting.


#20

5tsp of baking soda plus one cup of lemon juice equals VOLCANO.

The rest is just misdirection.