Cuisine exists in intellectual property law’s “negative space”: It is relatively unprotected by formal intellectual property (IP) laws, yet creativity and innovation flourish. This runs contrary to the given economic wisdom that propertization is required to incentivize creation. Community norms and the first-mover advantage help to explain how cuisine thrives in this low-IP equilibrium. However, such norms are relatively fragile, and recent cases and discussions have shown that as the restaurant industry grows, these community norms may fail to protect creative chefs adequately. This will likely lead chefs and restaurateurs to push for an expansion of existing law to replace or replicate those norms.
Commentators in the legal community and the culinary world have debated the merits of expanding IP law to cover restaurant dishes. Most have focused on copyright and, to a lesser extent, patent law. This Comment is the first to explore in depth how trade dress law, a subset of trademark law, presents another possibility for protecting restaurant dishes. I argue that a small expansion of trade dress to cover the plating of restaurant dishes is an ideal way to codify existing norms in the restaurant industry and to maintain an industry-appropriate level of IP protection.
Ultimately, I conclude that protections built into the trademark system will adequately address many of the fears about increased IP protection in the restaurant industry, and I suggest that a small increase in formal protection for this traditionally low-IP industry is worth the risk, because it is likely to spur a higher quality of creative production and may increase chefs’ ability to monetize their creativity.