Intellectual Property Fights Move Into The Restaurant Business

from the ugh dept

When trying to explain the problems of today's intellectual property system, it's often useful to use pizza shops as an example. Competition is natural. No one, the idea goes, should feel that a competitor opening up a pizza shop down the street somehow "infringes" on another pizza shop. It's just basic competition -- the same type that has helped grow and benefit society for ages. However, in our over-lawyered age where suddenly everyone is looking for ways to apply the monopoly powers of intellectual property law to their own business, this may be changing. Just like there's a push underway to introduce new monopoly rights into the fashion industry in spite of (or, in fact, because of) a thriving competitive market, it appears that lawyers are now looking to do the same in the restaurant business. The NY Times writes about a restaurant owner who is suing the owner of a competing restaurant. It is true that the second owner used to work for the first, but saying he then cannot open a competing restaurant is ridiculous (and, is pretty clearly allowed by the law).

There are some amazingly ridiculous statements in the article. For example, the owner of the first restaurant, Rebecca Charles, is most upset by the fact that the owner of the second, Ed McFarland, offers a Caesar salad that Charles insists McFarland copied from her recipe. Of course, even she admits that her mother got that recipe from another restaurant, but doesn't seem to note the irony of then claiming ownership of it herself. Also, Charles admits that she based the idea for her restaurant on another restaurant. Looking at the menu for Charles' restaurant shows that she sells New England Clam Chowder... clearly invented by others. Is she paying up for that intellectual property? Of course not. The law is pretty clear on this one that she has no case -- and that's for a good reason. Imagine if there could be only one pizza shop in all of New York. Or only one oyster bar. That's ridiculous and would harm just about everyone. However, in this age where monopoly rights are bizarrely considered a good thing, it's no surprise that we're seeing a push to go in that direction.

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  1. identicon
    Christopher Peterson, 28 Jun 2007 @ 3:10pm

    Trademarks

    Pete quotes David Burke as stating he owned trademarks
    for "swordfish chop" and "salmon pastrami".

    Not true. He abandoned his salmon pastrami trademark
    applications and cancelled his swordfish chop
    application.

    The trademark database can be search here: uspto.gov

    and interestingly, "pearl's oyster bar" as a
    restaurant name is actually owned by someone in
    Oklahoma!!

    http://www.funfresh.com/pearls.htm

    so perhaps it is Rebecca charles who is violating the
    trademark rights of the Oklahoma Pearl's!!

    best,
    chris peterson
    860-307-1380

    Word Mark PEARL'S OYSTER BAR
    Goods and Services IC 043. US 100 101. G & S:
    restaurant services. FIRST USE: 19841001. FIRST USE IN
    COMMERCE: 19841001
    Mark Drawing Code (1) TYPED DRAWING
    Design Search Code
    Serial Number 78302896
    Filing Date September 19, 2003
    Current Filing Basis 1A
    Original Filing Basis 1A
    Published for Opposition June 22, 2004
    Registration Number 2884384
    Registration Date September 14, 2004
    Owner (REGISTRANT) Pearl's Oyster Bar, Inc.
    CORPORATION OKLAHOMA 827 Northwest 63rd Street, Suite
    102 Oklahoma City OKLAHOMA 73116
    Attorney of Record Anthony L. Rahhal
    Prior Registrations 2506685;2672937
    Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO
    USE "OYSTER BAR" APART FROM THE MARK AS SHOWN
    Type of Mark SERVICE MARK
    Register PRINCIPAL
    Live/Dead Indicator LIVE



    Word Mark PASTRAMI SALMON
    Goods and Services (ABANDONED) IC 029. US 046. G & S:
    MEAT; FISH FOR FOOD PURPOSES, SHELLFISH, NAMELY SHRIMP
    CLAMS AND LOBSTER; SEAFOOD; PROCESSED SEAFOOD. FIRST
    USE: 19940101. FIRST USE IN COMMERCE: 19940101
    Mark Drawing Code (1) TYPED DRAWING
    Design Search Code
    Serial Number 76335934
    Filing Date November 9, 2001
    Current Filing Basis 1A
    Original Filing Basis 1A
    Owner (APPLICANT) BURKE, DAVID INDIVIDUAL UNITED
    STATES 100 EAST 63 ST NEW YORK NEW YORK 10021
    Type of Mark TRADEMARK
    Register PRINCIPAL
    Live/Dead Indicator DEAD
    Abandonment Date August 5, 2002

    ======================

    Word Mark PASTRAMI SALMON
    Goods and Services (ABANDONED) IC 029. US 046. G & S:
    fish. FIRST USE: 19860100. FIRST USE IN COMMERCE:
    19860100
    Mark Drawing Code (1) TYPED DRAWING
    Design Search Code
    Serial Number 74503022
    Filing Date March 21, 1994
    Current Filing Basis 1A
    Original Filing Basis 1A
    Owner (APPLICANT) Burke, David L. INDIVIDUAL UNITED
    STATES 28 Old Fulton Street, THG Brooklyn NEW YORK
    10021
    Attorney of Record Robert W. Beattie
    Type of Mark TRADEMARK
    Register PRINCIPAL
    Live/Dead Indicator DEAD
    Abandonment Date October 4, 1995

    ==========================

    Word Mark SWORDFISH CHOP
    Goods and Services (CANCELLED) IC 029. US 046. G & S:
    prepared fish for consumption on or off the premises.
    FIRST USE: 19920100. FIRST USE IN COMMERCE: 19920100
    Mark Drawing Code (1) TYPED DRAWING
    Design Search Code
    Serial Number 74321106
    Filing Date October 8, 1992
    Current Filing Basis 1A
    Original Filing Basis 1B
    Published for Opposition October 26, 1993
    Registration Number 1870697
    Registration Date December 27, 1994
    Owner (REGISTRANT) Atlantic & Pacific Grill
    Associates L.P. DBA Park Avenue Cafe composed of White
    & Witkowski Inc., a New York corporation LIMITED
    PARTNERSHIP NEW YORK c/o The New York Restaurant
    Group, Inc. 1114 First Avenue New York NEW YORK 10021
    Assignment Recorded ASSIGNMENT RECORDED
    Attorney of Record Scott Greenberg
    Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO
    USE "SWORDFISH" APART FROM THE MARK AS SHOWN
    Type of Mark TRADEMARK
    Register PRINCIPAL
    Live/Dead Indicator DEAD
    Cancellation Date January 5, 2002

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