Regarding tt, it looks like amateur hour from here. I hate it when little kids somehow end up with enough money to have the wherewithall to make other people’s lives miserable. Grow up!

And not that I would have wound up doing the same thing; I work in a different legal climate here, where declaratory judgment actions aren’t so popular. If the only communication I had received was the letter described in that complaint, I probably wouldn’t have seriously considered spending the money bringing such an action unless I knew that (i) TT was telling others that I was infringing its rights (making this an action for trade libel or false and misleading statements), or (ii) TT was on the verge of bringing suit itself, and not merely threatening.

Assuming that TT was convinced that it had enforceable rights and wouldn’t stand for any competition, well, sending a C&D presenting an ultimatum is pretty much the only first step, short of suing straight away (and why do that if you can negotiate a settlement without the expense of a pending lawsuit?). An alternative form of letter would have been a “just so you know, we have trade dress rights in our yarn” or a “if you don’t stop, I’m going to take it to my lawyer” (rather than going to the lawyer straight away) letter, which doesn’t convey the sort of immediacy that convinces a potential defendant to negotiate.

As a further alternative, if TT was convinced that it possessed trade dress rights, it could have also tried to obtain a trademark registration first, and then presented their ultimatum once successful; however, that takes time, and TT probably wouldn’t want AY to become any more established in the market in the meantime. As it is now, if TT applied for a registration, I wouldn’t be surprised to see AY oppose it at the appropriate time.

I assume that TT’s lawyers did warn about potential blowback. Maybe TT thought they’d gamble that AY had less money to spend than TT on a legal dispute… the thing is, if a company has committed substantial resources to a product, they’re not likely to give it up without a fight.

And I wonder if TT tried an alternate route to shut down AY’s dealings in beaded silk at its source — by contacting AY’s supplier. If they think they have trade dress rights in dyed, beaded silk yarn, well… wouldn’t they assume the same thing with undyed, beaded silk yarn?

If TT is really serious about protecting its products this way, I’d expect to see them expend more effort in future towards prevention, rather than cure (by C&D letters or lawsuits): trademark applications for their business name and yarn names (by contrast, AY got a trademark registration for ARTYARNS); attempts to get design patents or trademark registrations for the design of some of their future yarns; marking their products with proprietary notices, however nebulous those claims may be. But in a case like this, it seems that the best course would be to engage in good ol’ fashioned competition (if there really was an infringement of rights, then TT could always claim damages because of price depression).

http://www.gourmetnews.com/index.php?p=article&id=gn200706vc6I51

…could someone pass the Bingham Hill cheese please?

I can’t see that TT has any way of proving an unfair competition claim. But of course I’m an economist, and we tend to like competition. As legal strategy, do you think it made any sense for TT to send the original C&D letter? My own advice to TT would have been that they might be unhappy but they really don’t have a leg to stand on here, and trying to stop Artyarns would just dump mud on TT itself.

Strangely, a quick google only turns up reports of this chef’s call to arms by noted open/free source bloggers (e.g., FSFE, and picked up by Boing Boing), so I’m wondering why a firsthand report isn’t showing up. Either I didn’t look hard enough, or…

Anyway–contrary to the assertions made by one interviewee in that article (second page), the appearance of restaurants *has* been protectable in the U.S. under trade dress laws, although it’s not easy. Possibly the restaurants that succeeded in proving trade dress rights were chains. But I haven’t heard of anyone trying to extend this to their menus and recipes (although some companies may have trademark rights in the names they apply to their McFood items).

In the case of this restaurant, I wonder if she has some kind of argument about an unwritten non-compete agreement or a fiduciary duty — the plaintiff says that she taught the defendant (implied obligation not to set up a competing restaurant in the same region? I’m not certain what the industry practice is) how to make her version of caesar salad, and she allegedly told him he couldn’t use it elsewhere (non-compete or non-disclosure?). But that’s a long way from trade dress in the restaurant or menu selections, because that’s publicly available information.

In another foodie-related incident, a cheesemaker was held liable for misappropriating trade secrets (I think that’s the “intellectual property” referred to in the article), but he seems to have had a written confidentiality and non-compete agreement.