How items on your menu could get you sued
NPR reports on an interesting phenomenon: what happens when a generic name for a food item gets trademarked? In a nutshell, lawsuits. Lots of them.
The report focuses on the Kentucky-beloved dessert known as the "derby pie" – the boozy cousin of the pecan pie, complete with a splash of bourbon and chocolate chips. The same way pecan pie is a generic term for that type of dessert, Kentuckians consider derby pies to be a catchall for that type of recipe.
The trouble is that Kern's Kitchen in Louisville trademarked the name "Derby-Pie," and so any restaurant that lists the term on its menu can expect a speedy cease-and-desist letter, according to NPR. Kern's Kitchen isn't messing around when it comes to protecting that trademark – it sued several diners and Bon Appétit magazine over using the name to keep it from becoming a generic term.
It just goes to show you that what you put on your menu can become a liability if you're not careful.
What's in a name? A trademark infringement lawsuit waiting to happen
Though you may think using different ingredients for popular recipes may be enough to limit your trademark infringement exposure, the derby pie example demonstrates that's not the case. The report states Kern's Kitchen uses walnuts instead of pecans and forgoes the booze altogether in its pies. Ultimately, it's what you call your menu items that can land you in hot water (see also: the Cronut controversy).
This is a good example of what the insurance world calls "advertising injury," the civil wrongs that impede on another entity's brand, reputation, or ability to do business. Your restaurant could be sued over advertising injuries if it:
- Infringes on someone's copyright or trademark
- Commits slander or libel (i.e., spoken and written defamation, respectively)
- Invades someone's privacy via its advertising (e.g., publishing a customer's photo without permission)
- Copies someone's advertising ideas
When it comes to naming menu items, you have to be especially wary of copyright and trademark infringement. Even if you think something is a generic term for a certain type of food (e.g., a Reuben to describe a type of corned beef sandwich), the derby pie dilemma is a reminder that you should double-check anyway.
After all, NPR writes that one of the diner owners Kern's Kitchen sued is still paying off $14,000 in attorney fees.
Making the menu: Do your research to limit risks
While dreaming up new dishes or drinks for your restaurant, catering business, bakery, or bar, it helps to do your research before settling on a name. If you have the funds to spare, you can team up with a copyright lawyer to review your menu before you make it public.
Another key ingredient for your risk management plan? Get familiar with what counts as copyright infringement. Even if your menu is 100% original material, you'd be surprised how easy it is to commit advertising injuries when you market via social media.
One of the things you'll discover in this guide is that general liability insurance may offer advertising injury coverage, which can help pay for:
- Attorney fees
- Other court costs
Given that a single copyright infringement lawsuit can take years to resolve (and there may be the chance of an appeal), this coverage can ensure you don't end up paying tens of thousands of dollars out of pocket in legal defense fees alone.
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