Last month it was reported that in Manhattan, Pearl Oyster Bar Owner Rebecca Charles is suing her former Sous Chef, now her business rival, alleging that he has copied “each and every element” of her restaurant – from the grey paint on the panelling and white marble bar, to the oyster crackers on the tables – and the recipe for Rebecca’s Caesar Salad. We shall have to wait for the result, but the “trade secret” she claims for the salad consists of the presence of a coddled egg and added English muffin croutons.
Pie in the sky, or serious claim?
Charles is clearly upset and thinks there is something in it. If this was in England, could our laws on intellectual property rights help?
FORMAT RIGHTS Let’s begin with the premises. A number of hotels, restaurants and bars have grey walls – the law is keen to make sure that monopolies are only granted where merited. But steps can be taken to acquire some measure of protection. TV game shows such as Who Wants to be a Millionaire? can benefit from format rights, which can be written down and sold, and the same could apply to restaurants. But these are not rights recognised under English law, but rather an industry term used to refer to an amalgamation of rights, which together should be sufficient to prevent someone else creating something (confusingly) similar.
These rights arise by virtue of the creation of your premises and the business you run there. The more stylised and unique those premises, the more obvious it is when someone imitates you. This is where the law of passing off may help.
If customers are genuinely confused by a similarity between two premises and you are suffering commercially, you may have a right of recourse.
TRADE MARKS The most obvious legal protection is to trade mark the name of your premises and any distinctive designs or logos. It will cost roughly £500 each time, but if the mark is suitably distinctive, you will be able to prevent others from using it. You can achieve the same protection over time, by simply trading under the name or logo, but enforcing the right this way has more hurdles.
You might also consider trade marking a dish, but this is more difficult – trade marks cannot be descriptive and must be distinctive.
It is not always easy to tempt customers with dishes with names bearing no resemblance to the dish itself, although this can be useful eg for cocktails. In each case, a reasoned cost–benefit analysis must be undertaken, so it tends to be the preserve of the chains.
COPYRIGHT Distinctive menu layouts will attract copyright protection if they are original and sufficient skill has gone into their creation. Arguments over what constitutes “sufficient” skill keep copyright lawyers in business, but it’s just like an elephant: you’ll know it when you see it.
FRANCHISING AND INVESTMENT Protection of your investment is useful not only for you but for anyone who wants to join in your business venture. Franchising may be a dirty word to the die-hard independent, but is an option for simple and successful businesses. To work, you need to be able to commit to paper not just how your business works, but what is distinctive. If you have this protection and the business runs well, outside investors will be able to see a protectable turnover and profit.
EMPLOYEES The greatest competition to a business can come from staff who know your business intimately and decide to set out on their own. You might seek to place restrictions from competing with you if they leave in employment contracts, but they are unlikely to be enforceable at all but the highest levels. Nonetheless staff owe a duty of confidentiality to their employer; if what they “steal” really is confidential, there may be hope.
THE BASICS The law will not always help, but it can be an effective tool to allow you to benefit from your original ideas.
Great food, fabulous service and an unforgettable atmosphere are, one hopes, taken as read, and so maintaining your individuality might just make the difference.
Rupert Casey is a Partner at City law firm Macfarlanes in the Commercial and Intellectual Property Group.
How to protect your intellectual property rights
- Make sure staff know what it is that makes you different
- If you want outside investment, anticipate questions on this subject
- If you might want to franchise, see if you can commit your operation to paper
- Manage your own expectations – the law may not be able to help but it is worth finding out
- If you want to imitate a look that you have seen, think carefully and, if in doubt, take advice