April 13, 2021

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April 13, 2021

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April 12, 2021

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Chicken Sandwich Recipe, Name Not Eligible for Copyright Says First Circuit

Neither a chicken sandwich recipe nor its name is eligible for copyright protection. Colón-Lorenzana v. South American Rest. Corp., Case No. 14-1698 (1st Cir., Aug. 21, 2015) (Howard, C.J.).

The plaintiff, a worker at fast-food restaurant, suggested a concept for a new chicken sandwich, complete with recipe and name. The “Pechu Sandwich,” as he called it, would consist of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun. Subsequently, the restaurant began selling the sandwich and obtained Puerto Rican and federal registrations for the trademark.

Mr. Colón-Lorenzana, the creator of the Pechu Sandwich, sued the fast-food restaurant, claiming that the restaurant had violated his copyright in the sandwich’s recipe and its name, and committed fraud on the U.S. Patent and Trademark Office in obtaining its trademark registration for the mark “Pechu Sandwich.” After the district court granted the restaurant’s motion to dismiss the federal claims, the plaintiff appealed.

The First Circuit affirmed the dismissal of the copyright claims, finding that neither the recipe nor the trade name fell into any of the eight enumerated categories of works available for copyright protection. The Court also affirmed the dismissal of the fraud claims as insufficiently pled because they contained only conclusory allegations and “courts ‘do not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.’”

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© 2021 McDermott Will & EmeryNational Law Review, Volume V, Number 272
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About this Author

Associate

David Mlaver* is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  He focuses his practice on intellectual property litigation matters.

David received his J.D., cum laude, from the Georgetown University Law Center, where he was a senior editor of The Tax Lawyer.  He earned his A.B. in chemistry and B.S. in biology, with high distinction, from Duke University. David is admitted to practice in Maryland.

*Not admitted to practice in the District of Columbia...

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