Question:
I am being accused of copying another restaurant's menu. We both have a Texas barbecue bacon burger on the menu, which is something they are well known for. They are also saying I'm using similar toppings on my burgers and chicken sandwiches. They are threatening a lawsuit and asked me to change the menu and the names of things.
– - Owner
Answer:
This is a tricky one—food can be a gray area when it comes to intellectual property. For example, lots of people can have an item on their menu, say, mac and cheese. No one “owns” the right to menu that item. The same is even true for your twist on mac and cheese—lobster mac, braised short rib mac, and so on. You can, however, protect the exact recipe for how you make your mac and cheese as a trade secret. You could also try to trademark your particular menu item: “Jumping Johnny’s Famous Cheeze-a-Mania,” could be protected.
David M. Perry, partner and co-chair of the Intellectual Property and Technology Practice Group at Blank Rome is an expert in this area. I ran your question by him, and he said, “Primarily the question comes down to copyright. Copyright law notoriously does not protect mere listings of ingredients. Copyright would require some modicum of authorship in a menu.” So, listing a burger with barbecue sauce, bacon and pickled onions does not steal anyone else’s idea and it’s not protectable.
Perry says, “If we are getting into the territory of creative and unique names for these items, then we get into trademark territory. Most menu names are descriptive so not protectable under trademark law. If you wanted to call your Texas Barbecue Bacon Burger the “Grab the Bull by the Horns,” you could conceivably use branding to distinguish yours from someone else’s.”
Perry recommends this strategy if you feel you are offering something truly unique. The trademark process is a long and pricey one—but one that can protect your hard work. “That’s what you’d do to secure nationwide rights and put yourself on the map,” he says.
My advice is to do what you can to work with your chef, supplier, or a menu consultant to make your items distinctive and appealing. And otherwise, just focus on offering high-quality food and service—your guests don’t care who claims to have had the idea first.
As always, this column is not legal advice. Check with your attorney for guidance specific for your situation.
More on “stealing” recipes here.