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Issues Faced by the Food Industry

Protecting intellectual property is very important in the food industry. Recently, Ina Garten, otherwise known as the Food Network cooking show host, the "Barefoot Contessa," sued a California company called OFI Imports, Inc. for selling unauthorized "look-alike" frozen dinners. Although Garten asked OFI to stop selling the dinners, which were manufactured by "Contessa Premium Foods," the company refused and eventually went out of business. Garten's lawsuit seeks to stop further sales and award damages.

The food industry has provided a number of interesting examples of intellectual property disputes. For instance, the snack food manufacturer Kind, which sells nut-based bars in transparent wrapping, is suing Clif, the company that makes the Mojo bar. The Mojo bar is also sold with transparent wrapping. Kind has argued that the packaging style, which allows consumers to see the nuts and seeds in each bar, is integral to its brand, and Clif's sale of bars in similar, transparent packaging is a trademark violation. A third company, Larabar, has also begun using transparent packaging.

Another lawsuit has alleged that trademark infringement of an entire restaurant "concept" is actionable. The Pearl Oyster Bar in New York is now suing another New York restaurant opened by the chef's former sous-chef, according to the New York Times. The Pearl Oyster Bar has accused the new restaurant of having copied the white marble bar, gray paint, chairs and bar stools with "wheat-straw backs," packets of oyster crackers at each table setting, and the type of dressing served on the Caesar salad. Experts believe this suit by a small restaurant, to defend techniques and recipes, is an aggressive, but not unusual move. The chef at Pearl Oyster explained that while she herself was inspired by another oyster bar in San Francisco, she made "hundreds of small decisions" about her restaurant in order to create her own concept. She wanted to create a seascape in Maine where she spent summers as a girl-and her lawsuit is a way to protect her creation. She believed that the other restaurant profited unfairly from all of her careful planning.

Another example involves the famous talking dog who advertised for Taco Bell restaurants. In 1997, Taco Bell introduced a talking Chihuahua who would "say," "Yo quiero Taco Bell." The iconic campaign ran until 2000, and in 2003, two men alleged that Taco Bell committed theft of trade secrets. The men argued that they presented the idea to Taco Bell, but that Taco Bell hired another advertising agency to execute it and never paid the men. The court sided with the plaintiffs and awarded $30.1 million in damages. Taco Bell then sued the advertising agency, claiming that the agency should have known about the pitch and should have protected Taco Bell from legal action. The court disagreed with Taco Bell and Taco Bell was forced to pay.

The food industry, like many other industries, faces many nuanced intellectual property issues and the experienced trademark and IP lawyers at Myers Berstein LLP can help you navigate these issues.

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