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Many Chefs, Restaurants Working More Diligently to Trademark, Copyright and
Patent to Protect the Fruits of their Creative Labor and Innovations

By Nichole Aksamit, Omaha World-Herald, Neb.McClatchy-Tribune Regional News

Sep. 19, 2007 - Tricks of the trade can be tricky to keep in a restaurant -- where the innovations that set a dining experience apart must be shared with the staff who help produce it.

It's a fact well-known to Chicago patent attorney Charles Valauskas, who will speak Thursday in Omaha as part of a two-day Creighton University conference for would-be entrepreneurs.

Valauskas and his firm represent Homaro Cantu, the chef-auteur of Chicago restaurant Moto. Cantu is widely known for his culinary innovations, which include cooking with liquid nitrogen and printing edible photographs and menus.

He's also part of a new crop of chefs working more diligently to trademark, copyright, patent and otherwise protect the fruits of their creative labor.

Though Valauskas' talks cover intellectual property rights for any business, he sat down with us to talk about sometimes-overlooked assets in the culinary arena.

Q. In a restaurant setting, what things could be considered intellectual property?

A. Well, you'd have to start off with the recipes themselves. Trade secrets protect, with respect to food, any new way of making food and the new food itself. It could also be a new piece of hardware you've made to create this food. Certainly, the secret seasonings a chef uses for the dish could be protected. And if you've created something new and useful, it could also be protected by patent.

Trademarks could protect the name of the restaurant, as well as the look and feel of the restaurant. Copyright could protect the information on the menu, the artwork used on the menu and, if the chef has written a cookbook, then the cookbook.

And, finally, there's the right of publicity, the right that each person has to control the commercial use of their persona, their image. It could be their face, their signature, their name.

Q. I would guess that arguments like "the sous-chef stole my recipe" are not exactly new. Is it only recently that they're ending up in court?

A. Yes. From time to time, you see these. We only know of the cases that are reported (like that of the Pearl Oyster Bar in New York, whose owner sued her former sous-chef this summer for launching a similar restaurant). There may be more that are filed. I think very few of them actually go all the way to trial.

Q. Why? Is it just too difficult to discern whose recipes are whose?

A. Oftentimes the person making the claims doesn't fully appreciate what protection the law provides. You see, a person is allowed to carry his or her tools of the trade from job to job. So if everyone knows how to cut a carrot or bake bread or season a dish, and all chefs are trained that way, you can't prevent that person from using that skill in a new job. You can only prevent that person from using a skill they learned from you.

Q. Many recipes are adaptations or evolutions of a culinary or community standard. How much difference makes it your own?

A. If it's a standard dish and, with your improvement, the public just goes "Wow!" oftentimes that tells you you've made enough improvement to develop some property rights. What we're looking at is protecting that improvement.

Q. So, how can you protect your recipe, style or concept?

A. First, have an agreement between yourself and your staff that (essentially says): "That which I'm going to show you is my property, and I want you to keep it confidential. It doesn't leave this kitchen." You could do it, preferably, by written contract. But some people, just by the nature of the positions they hold, are obligated to maintain the confidence of the information they are told.

Q. Doesn't that knock heads, or at least bump elbows, with the idea of apprenticeship training in restaurants?

A. Well, no one is preventing staging, which is -- for the most part -- learning basic techniques. You're washing mushrooms, shucking oysters, preparing the components the chefs would use to prepare the food. Those are basic techniques, and they can go and leave with those. But it would be unfortunate for the chef to have worked to develop a recipe for years and then have someone who's there for two weeks steal the recipe.

Q. Besides confidentiality agreements, is there much restaurants can do to protect their design, name or concept?

A. For the trademark, you can register with the U.S. Patent and Trademark Office. It's not that expensive and doesn't take that long. You can register the copyrights for the menu and the Web site. It's a fairly simple, easy procedure. And if you've created something unique and useful, you can apply for a patent.

Q. Why are more chefs and restaurateurs taking such steps?

A. Chefs are becoming household names. There's a lot of value in what that chef is producing. And, also, it's so expensive to start a restaurant -- one with a good, unique look -- that more are spending a little time making sure that's protected.

Q. So is there pressure from investors to do this?

A. I think so. If I were an investor, I would certainly demand it. It would be unfortunate if the owner didn't and then had to tell his investor: "Well, now there's a similar chain starting down the street."


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