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Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore
Intellectual Property? I am not a lawyer, but I am an assiduous observer of the evolving definitions of intellectual property.
Is Rebecca Charles arguing that her recipes are a trade secret?
She admits that there is no novelty in the concept behind her restaurant or the cuisine she offers to her guests. To use patent law parlance, there is prior art and, consequently, no enforceable rights in the alleged intellectual property.
I hope that she does not intend to argue that anyone will confuse Pearl Oyster Bar and Ed's Lobster Bar and that this confusion will diminish the value of her recipes, concept, and guest service.
Ms. Charles is not operating a chain and has dubious claims to unregisterd trademark infringement. Ms. Charles would have to allege that Ed McFarland's business is "passing off" i.e. Ed's Lobster Bar is misrepresenting itself and illicitly appropriating the reputation and doing damage to the hard won business goodwill of Pearl Oyster Bar. Trademark is notoriously one of the most difficult forms of intellectual property to defend because of the diligent and often costly defense it requires to preserve.
Restaurants distinguish themselves in the marketplace in a variety of ways, but food quality and service are irreplaceable elements of success in the industry.
To me, Ms. Charles' lawsuit appears to be anti-competitive. It is not unusual in the market for leased restaurant space for exclusivity clauses to appear in the lease contract that prohibit landlords from renting to a competitor selling similar products i.e. a sandwich shop may require a contingency in the lease agreement forbidding the landlord from leasing to another sandwich shop within the same building or a clearly defined trade area.
If Ms. Charles wants to squander the good will she has worked hard to build up in her business venture, she should pursue this case that will surely attract the attention of her guests and her competitors in ways she may eventually regret.
If Ms. Charles wants to enjoy continued success in an increasingly competitive submarket of the restaurant industry in New York City she should continue to offer the same delightful food, service, and atmosphere that her many satisfied and loyal guests value and recommend to others.
Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore
I don't know much about legal matters, so I believe others when they say this case has no legal merit, but I am confused by people who compare this situation to one where you have restaurants with similar concepts in different cities that are 100's or thousands of miles apart. These places are a mile apart and almost look they could be part of the same chain.
Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore
Did Gertrude Stein sue Ernest Hemingway for stealing her rhythm? Did Cezanne sue Picasso? Did the crack dealer on my corner sue the crack dealer across the street - oh wait, there was that gunfight. The Anxiety of Influence strikes the seafood sector - someone tell Harold Bloom.
Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore
I think I will never go to Pearl Oyster Bar again. I guess until POB opened there wasn't such a thing as a new england seafood shack otherwise some one would be suing her. She really needs to get over herself. Does she really think two more "lobster shacks" are going to hurt her bottom line? She gets plenty of business.
Rebecca Charles is Mad as Hell and She's Not Going to Take It Anymore
Although I deplore McFarland's actions and hope that he fails miserably, I don't think Ms. Charles has a strong enough legal case to prevail. Neither her menu nor her dining room are unique enough to stand as original concepts. I expect that the courts will not provide her with any satisfaction, unless she can prove that McFarland intended to deceive the public. Her best hope is to bury McFarland by providing a better and more exciting dining experience. And if there is such a thing as karma, I hope McFarland gets buried in the bad kind, right up to his neck
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Intellectual Property? I am not a lawyer, but I am an assiduous observer of the evolving definitions of intellectual property.
Is Rebecca Charles arguing that her recipes are a trade secret?
She admits that there is no novelty in the concept behind her restaurant or the cuisine she offers to her guests. To use patent law parlance, there is prior art and, consequently, no enforceable rights in the alleged intellectual property.
I hope that she does not intend to argue that anyone will confuse Pearl Oyster Bar and Ed's Lobster Bar and that this confusion will diminish the value of her recipes, concept, and guest service.
Ms. Charles is not operating a chain and has dubious claims to unregisterd trademark infringement. Ms. Charles would have to allege that Ed McFarland's business is "passing off" i.e. Ed's Lobster Bar is misrepresenting itself and illicitly appropriating the reputation and doing damage to the hard won business goodwill of Pearl Oyster Bar. Trademark is notoriously one of the most difficult forms of intellectual property to defend because of the diligent and often costly defense it requires to preserve.
Restaurants distinguish themselves in the marketplace in a variety of ways, but food quality and service are irreplaceable elements of success in the industry.
To me, Ms. Charles' lawsuit appears to be anti-competitive. It is not unusual in the market for leased restaurant space for exclusivity clauses to appear in the lease contract that prohibit landlords from renting to a competitor selling similar products i.e. a sandwich shop may require a contingency in the lease agreement forbidding the landlord from leasing to another sandwich shop within the same building or a clearly defined trade area.
If Ms. Charles wants to squander the good will she has worked hard to build up in her business venture, she should pursue this case that will surely attract the attention of her guests and her competitors in ways she may eventually regret.
If Ms. Charles wants to enjoy continued success in an increasingly competitive submarket of the restaurant industry in New York City she should continue to offer the same delightful food, service, and atmosphere that her many satisfied and loyal guests value and recommend to others.