Owner of 'Derby Pie' Trademark Sues Newspaper For Using The Term, Publishing Recipe

from the and-they're-off! dept

Long-time Techdirt readers may recall that the "Derby Pie", a notable dessert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.

But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.

U.S. District Judge Rebecca Jennings, an appointee of President Donald Trump, dismissed Rupp’s complaint in March and ruled the newspaper had used the term in a “non-trademark” fashion.

Jennings called Rupp’s complaint “skeletal,” finding he failed to establish a plausible claim that a consumer would think the newspaper asserted ownership of the mark or itself was a manufacturer of Derby Pie.

In other words, there was no chance for customer confusion because, well, The LCJ is a damned newspaper. As to mentioning that other bakeries had products that existed, the LCJ reporting on that factual occurrence had nothing to do with trademark law and is protected First Amendment speech.

But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage. Which is true, except in cases when the case has little to no chance of succeeding, which is certainly the case here. The LCJ itself responded, pointing out that First Amendment is a thing.

Attorney Michael Abate argued on behalf of the Courier-Journal and told the panel there is “no conceivable basis” for a trademark infringement claim, but also pointed out the newspaper’s speech is protected under the First Amendment.

“We’re talking about news stories that are plainly protected under the First Amendment.

Add to that the non-commercial nature of the article's recipe (the newspaper isn't selling pies or the recipe itself), the lack of monetary harm to Rupp, and the fact that these attacks are on news coverage and you have a, ahem, recipe for a failed lawsuit. Rupp possibly should be going after other bakeries using his trademark, but not a newspaper.

A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.

Filed Under: alan rupp, copyright, derby pie, journalism, kentucky, recipe, trademark
Companies: louisville courier-journal

DailyDirt: Really Expensive (Or Just Time-Consuming) Foods

from the urls-we-dig-up dept

Maybe you've heard that the word 'salary' comes from Roman soldiers being paid in salt. That's seems like a fuzzy bit of history, and no one actually knows with certainty how early Roman soldiers were paid, but at some point, they were paid with coinage -- or perhaps with some other kind of allowance to purchase salt. Luckily, most people don't get paid in spices anymore, but there are a few food items that are expensive enough that they could be used as currency. (And if you want to really get off the grid, you might want to know about how much it'll cost to really make everything yourself from scratch.)

• Saffron, by weight, is probably the most expensive spice you'll ever consume. It takes about 85,000-150,000 flowers (just the dried stigmas) to produce 1 kilogram of the spice. About 80-90% (or more?) of the world's supply is grown in Iran, and the industry and enthusiasts may start DNA fingerprinting to crack down on fake or diluted saffron. [url]
• If you want to spend a lot of money on a sandwich, you could order one with foie gras or truffles... or you could make one from scratch yourself. It'll only take you 6 months and about $1,500 to grow all the vegetables -- including the wheat to make bread -- and to raise and slaughter your own chicken. (Or spend a lot more and order lab-grown meat if you don't like killing animals.) [url]
• So you could grow your own saffron, if you really wanted to. When you get good at it, you can probably pick about a thousand flowers an hour, but it'll still take a few more hours to separate out the stigmas and dry them. Not quite a Chia Pet hobby. [url]
• If you want to try something exotic, cook a peacock recipe from 1612. Impress your 17th century spice baron friends, and remember that people used to risk their lives for a few valuable spices. [url]

If you've been thinking about doing other things yourself, like learning how to code, take a look at our Daily Deals for a collection of online courses to help you program and/or master some professional skills.

Filed Under: diy, dna fingerprinting, foie gras, food, peacock, recipe, saffron, salt, spice baron, spices