An article in Grub Street this week poses an interesting question: “When a Chef Leaves, Who Owns the Restaurant’s Signature Dish?” The context of the question is the case of New York Chef Justin Smillie, who recently left one restaurant, Il Buco Alimentari, to open another, Upland, and took one of his standout culinary creations with him. From an intellectual property standpoint, the answer is not clear-cut. Patent law is generally inapplicable to food served in restaurants. Copyright law can apply to cookbooks and compilations of recipes, but it does not protect the food made from recipes—the author of a cookbook could stop the reproduction of the recipes, but could not stop people from using the recipes to make food. And, as discussed in a prior post here, trademark law can rarely, if ever, provide protection for the flavor of food, because flavor is a functional element that affects the quality of the food—a federal court in Texas recently stated in dicta that the functionality doctrine is “possibly insurmountable—in the case of food.” Absent a contractual agreement between the restaurant and chef, the law does not provide a definitive answer to the question of whether a departing chef can bring his recipes to a new venue. However, as the article explains, a solution that some chefs have hit upon is “to publish cookbooks under their own names—not the names of the restaurants they happen to work at, in that moment in time,” which allows them “to lay claim to their creations” via copyright. Read the full article here.

By User:Arnaud 25 & Hélène Darroze (Own work) [Public domain], via Wikimedia Commons.

Reposted from Grub Street.