Cookbook trademark suit recipe for failure says New York judge

A hat tip to SFPL's resident San Francisco documents/cookbook expert for pointing out the latest culinary intellectual property showdown.

The New York Times reported a couple weeks ago that US Circuit Court judge in New York has thrown out a trademark infringement case brought against Jessica Seinfeld by cookbook author Missy Chase Lapine. Lapine claimed that Seinfeld's recent cookbook, entitled "Deceptively Delicious," was confusingly similar to her own "The Sneaky Chef."

While it's true that both books are about sneaking healthy foods into kids' meals, the judge ruled that there's no likelihood of consumer confusion, which is the primary test for trademark infringement. Judge Laura Taylor Swain's decision can double as a quickie book review for busy parents:

She called Lapine's book ''a dry, rather text-heavy work'' done predominantly in black, gray and shades of brownish-orange. She said Seinfeld's book was ''bright and cheerful, full of different colors and various patterns.'' Consumers who looked at each book were unlikely to be confused, the judge said, tossing out trademark infringement claims.

I wonder which book she liked better? Also, in the interest full disclosure, I'm not aware of the judge actually using any puns in her ruling, including the one from the title of this post.

In all seriousness, though, this story provides a good opportunity to highlight a characteristic about intellectual property that trips many people up: you cannot protect an idea, no matter how good or unique it is. Sure, all intellectual property is rooted in an idea, but the law only provides for the protection of a concrete manifestation of that idea.

Patents don't protect ideas, but rather articles of manufacture or methods for doing something. The article or method has to be expressed in some tangible medium, preferably in a working model. And the protection doesn't work to keep people from using the idea, but rather it keeps people from manufacturing or selling a particular product that is protected.

A copyright might seem like it's protecting an idea, but all that is actually protected is, again, the expression of the idea, in this case fixed in a tangible form. The copyright protecting a book protects the words on the page, not the themes or narrative arc of the story.

Lapine's objection to Seinfeld's book seems to be that Seinfeld stole her idea. I can't say whether that's true or not , but the judge's decision to toss the case illustrates the guiding concept behind trademarks, that two products should not be so similar in appearance or sound as to confuse consumers. Seinfeld's book didn't look like Lapine's, so there's no problem.

BTW, this is the first I've heard of parents sneaking health food into their kids' dinners. I do remember once my Grandma sneaking butter into some broccoli that my mother was planning to serve unadorned, though. Different times, those were.