James P. Flynn, a Member of the Firm and the Managing Shareholder of the firm’s Newark office, authored an article in ILN IP Insider, titled “Will It Be Known as “Michelin Star Athletica”?: Why the US Supreme Court May Have Given American Chefs a Reason to Cheer.”

Following is an excerpt:

Recent years have witnessed a surge in the United States in the appreciation for fine food and those who create it. Indeed, the concept of the “celebrity chef” has taken such hold in the United States that there are entire television networks and countless magazines (on-line and in print) to cooking, recipes, chefs and the like, not to mention a wide variety of restaurants at all price points trading on the name and reputation of such chefs. Indeed, in much the same way that sports fans snap pictures of star athletes or look for Top Ten highlights, diners now post from well-known (or even not so well known) eateries on-line reviews and uploaded photographs of each course served to memorialize their memorable food encounters; would-be diners and others take it all in as they try to decide what and where to eat.

Though often motivated by a desire to share the pure joy of delicious meal, this posting trend has become so pervasive, public and indiscriminate that it has engendered a more negative name for its seamier side — food porn! As one chef noted, food porn “takes away the surprise, and a little bit of my intellectual property.” Because chefs, especially in the United States, have not always had a clear path to controlling the depiction of their creations, controlling food porn has usually been left to the too-frequently-absent discretion of the diners, much to the chefs’ chagrin. But that may have changed with the United States Supreme Court’s decision in Star Athletica v. Varsity Brands, 137 S.Ct. 1002 (2017), which we have written about once or twice before. If Star Athletica is given in food cases the sort of application found in an August 30, 2017 decision by a federal court in the Southern District of New York in a lighting case called JetMax v. Odd Lots, chefs may have something to cheer about.

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