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Kern Kitchen's Derby Pie Is a Recipe for Lawsuits

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By Aditi Mukherji, JD on May 21, 2013 11:49 AM

If you've tried the Kern's Kitchen Derby Pie recipe, then you've tasted the most litigious dessert in America. The company owns a trademark on the term Derby Pie, a popular Southern confection (the picture is making my stomach growl).

Anyone can make the Southern dessert with chocolate, pecans, and lots of sugar. But after you whip it together, think twice before you call it "Derby Pie" -- or you could find yourself with a recipe for a Kern's Kitchen trademark disaster.

The intellectual property of recipes "boils down" to the difference between copyright and trademark law.

An Appetite for Litigation

Kern's Kitchen threatened to sue Wordpress.com for hosting individual websites who shared recipes under the forbidden name, the EFF reports. To avoid a trademark lawsuit, Wordpress told those bloggers to change the name of the recipe to something more descriptive.

EFF decided to take up the trademark taste-test challenge and bake their own "Mean-Spirited Censorship Pie" by using the recipe of a threatened blogger.

Trademarks give business owners a way to protect a word, design, symbol or phrase used with their company's products. Think brand names and logos.

Companies often trademark the brand name or logo so that consumers can easily recognize their products -- and know what to expect. When someone rips off the name, it becomes an issue of trademark dilution.

Though Kern's Kitchen went completely overboard in protecting their trademark, it can be useful to prevent actual competitors from "skimming" off the profits of your small business' brand.

If your product is successful, selling the trademark can be a pretty lucrative business move and help a business expand into other ventures.

A Note on Copyright Law

To all the aspiring Julia Childs out there, don't worry, recipes themselves generally aren't covered by copyright law. So sharing lists of ingredients and directions is fine.

But when a recipe has a lot of creative expression in its explanation or directions, or when there's a collection of recipes (cookbooks), it might be protected under copyright law.

The law on copyrighting recipes is still "half-baked." If you like to cook up a storm and blog about it, you can always play it safe by letting readers know where you found the original recipe -- or even better, ask for permission to republish it.

Bon appetit to all indulging in a (Not) Derby Pie!

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