Are Proprietary Food and Beverage Item Names Protectable? We still don’t know.

In Tomaydo-Tomahhdo LLC et al. v. Vozary et al., an Ohio restaurateur appealed to the Sixth Circuit arguing that her recipes deserve copyright protection. She argued unsuccessfully that her former business partner had copied her creative compilation of dishes, not merely used her recipes. The former business partner argued that she was seeking a “monopoly on serving basic items.” She responded that she wasn’t aiming to lock up individual recipes — only a creative arrangement of 50 dishes in a menu that the former business partner allegedly stole in its entirety. Her argument was interesting, acknowledging that the recipes themselves aren’t worthy of copyright protection, but the compilation “is a creative work not only for the order of the menu items (arrangement), but for the fact that the menu items exist on the menu at all (their selection), or for the reason that they were included in combination with the others (coordination).” The court disagreed, finding that since “the recipes themselves are not copyrightable and thus, any use of the recipes is not infringement.” The decision leaves open the question of whether proprietary food and beverage items names (such as the Volcano roll (sushi) of Death By Chocolate (cake or ice cream)) are protectable.

            Tracy_Jong About Tracy Jong

Tracy Jong has been an attorney for more than 20 years,      representing restaurants, bars, and craft beverage manufacturers in a wide array of legal matters. She is also a licensed patent attorney.

Her book Everything You Need To Know About Obtaining and Maintaining a New York Retail Liquor License: The Definitive Guide to Navigating the State Liquor Authority will be available next month on as a softcover and Kindle e-book.

Her legal column is available in The Equipped Brewer, a publication giving business advice, trends, and vendor reviews to help craft breweries, cideries, distilleries and wineries build brands and succeed financially.

She also maintains a website and blog with practical information on legal and business issues affecting the industry. Follow her, sign up for her free firm app or monthly newsletter.

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