LawFont.com

The New York Times carried a story about a lawsuit filed by restaurant owner Rebecca Charles, proprietor of the Pearl Oyster Bar in New York’s West Village. The article mentions that she has sued Ed McFarland, owner of Ed’s Oyster Bar, she considers to be a “knockoff” of her own. McFarland was her former sous chef for six years. [And yes, apologies for the pun in the title.]

According to the Times:

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

In an interview with blog FriendsEat, Charles elaborates on some of the details, including that 31 of the 34 items on Ed’s menu “come from Pearl”, and the other three are not currently on the Pearl menu but were in the past. She also alleges that items on Ed’s menu appear to be recipes contained in a cookbook she has published.

According to Charles, the likenesses go beyond recipes. She says that the food is made in the same way, with ingredients from the same suppliers, and served on the plate the same way. She also says that the physical layout is near identical, and “hundreds of little details in the décor, the style of service, the wine list” are also the same, to the extent that “[s]ome of the photographs that I received early on I had to do a double take. It looked like my restaurant.”

If brought in Australia, there would appear to be a number of overlapping issues:

1. Any breach of confidence or breach of fiduciary duty flowing from McFarland being former high-level, trusted employee now using information entrusted to him for his own use.

2. Any breach of misleading and deceptive conduct statutes, or passing off, if there is any issue that diners are confusing the two restaurants.

3. Breach of copyright.

The copyright issues are the most interesting, because of the question of what can be copyrighted.

The menus and cookbooks, and possibly the wine list subject to “originality”, are “traditional” kinds of material for copyright purposes, and would probably be most easily protected.

On the other end of the scale, “look and feel” of a restaurant is likely not to be protectable, if the principles underlying the American Apple v Microsoft ruling is any guide. Thus, the “style of service” is unlikely to be something in material form in which copyright even subsists.

But what about the “layout” of the restaurant? It would be interesting if there were physical drawings of the layout (in which copyright might inhere) and these were then reproduced. But if it’s something as basic as “chairs next to tables”, and “decor is wooden”, it’s hard to see what’s there to protect.

Eater.com also has two interesting takes on the case from those in the food biz: one on the lawsuit generally and another one on the fiduciary duty aspect.