Restaurant concept lawsuits run amok

Since opening Pearl Oyster Bar in the West Village 10 years ago, Rebecca Charles has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own. So "yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years." She claims he copied “each and every element” of Pearl Oyster Bar, from the paint and chairs to her recipe for Caesar salad.

Guh, this stinks. One one hand, I can see how she's frustrated after pouring so much into her restaurant and watching her former employees go open similar places. But filing a lawsuit seems ridiculous to me. I'm no fan of copyrighting recipes (see Keep recipes free) and I'm not much in favor of intellectual property claims on restaurant themes either. Lobster rolls? "Packets of oyster crackers placed at each table setting?" A "white marble bar" for seafood? Have you ever been to New England or France? Rebecca Charles hardly invented these concepts ten years ago. Instead, she was free to incorporate them in her new place because they've existed for so long and been used by so many; because they haven't been copyrighted and trademarked by lawyers and corporations. These details are the essence of our seafood restaurant vernacular, that's why they resonate with so many potential customers and give her West Village restaurant an authenticity she's now trying to control. Mr. McFarland would be hard-pressed to open an authentic-seeming lobster bar without including at least some similar items.

The real problems here are a lack of originality being demonstrated by Ms. Charles' former employees, and New Yorkers' demand for faux New England seafood shack restaurants. Regarding the former, it would be nice to see chefs move on to open their own places that build on what they've learned in previous kitchens, not copy the concept outright. Regarding the latter, in the throes of summer, those unlucky souls trapped in the sweltering city can dream of coastal Maine or Cape Cod by digging into fried clams and lobster rolls right here in Manhattan. And if you've seen the lines at Pearl or Mary's Fish Camp, you know there's room in this city for a few more joints. I've always said I'd like to see Danny Meyer do a Clam Shack, and I'd like to see him do it without the fear of a lawsuit.

Posted on June 27, 2007

readers comments:

I agree with you 110,000% regarding the growing abuse of the concept of intellectual property, what it's boundaries are, especially where food is concerned. It's very frightening, and must be discouraged. While I sympathize with Ms. Charles, I hope the court rules against her.

...says SP on 06/27/07 at 10:37 AM

Also agree. The judge should throw this case out of court. Sure, McFarland sounds unoriginal and a tad sleazy, but attempting to push broad concepts under IP law is a lose-lose for everybody: customers and restaurateurs . Charles is just to limited by (what is probably) a personal dispute to realize that.

Please get a grip.

...says twhid on 06/27/07 at 2:55 PM

While I'm not a trademark lawyer, it seems to me that the chance of success on any of her claims range between slim to none.

One basic misconception about IP law is that it's used to protect ideas. In fact, traditional American IP jurisprudence is pretty clear on the concept that you can't, in fact, protect pure ideas (though "business-method" and software patents are getting pretty close to that idea, which is one of the reasons why they're such bad ideas).

Plus the fact that she seems to be claiming trade secret in a recipe that she borrowed from someone else? Yeah, uh, I don't think so.

...says Frankenstein on 06/27/07 at 3:22 PM

I remember reading a Times article a year or two ago about several Chinese restaurants in NYC that have almost identical names due to chefs jumping ship and taking with them the menu and the actual identity of the restaurant. I don't recall reading about lawsuits in that case. Different outlook, I guess.

I say, just make a tastier lobster roll than the competition.

...says Burton on 06/27/07 at 3:50 PM

'throes' not 'throws' :)

...says james on 06/27/07 at 7:49 PM

Eeek yes, corrected.

...says megnut on 06/27/07 at 8:42 PM

Gargh. Right on, Meg.

...says Adam K. on 06/28/07 at 9:29 AM

I don’t get any of this and it is a prime example of our overtly litigious society - along with the guy who just tried to sue a dry cleaner for 65 million dollars. I grew up in New England, am the granddaughter of a Maine lobster fisherman and have been shucking my own seafood, lobster and all since I was three years old, and these folks are lucky I don’t sue them for copying my grandmother’s menus.

So McFarland worked for her for six years and then decided to open up a sea food shack on his own? Sounds par for the course up north. There’s nothing on either of those menus that I haven’t already eaten ... decades ago and it was either cooked up by my grandmother, mother and/or delivered fresh from the morning catch.

Ridiculous.

...says nichole on 06/29/07 at 12:21 AM

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