Intellectual Property

Cooking Up IP Literacy

Chef Dave Chang's frustration at the lack of respect for IP in the food industry is palpable.

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Intellectual PropertyWhen I first wrote about a podcast appearance by famous chef Dave Chang, our president was still Barack Obama. In that column, I highlighted the benefit of teasing out lessons for success in legal practice from high performers in other industries, “especially when they share lessons they learned on their path to success.” That is doubly true when they achieve their success in a service industry which shares similarities to the service profession that is legal practice. When I wrote that column, even though Chef Chang was very well known for his expanding empire of Momofuku restaurants, he was nowhere near as famous as he is now. Since then, Chang has become a multimedia star in his own right, with multiple podcasts on the Ringer podcast network, as well as numerous TV projects, including Netflix’s “Ugly Delicious.”

While I am only an occasional listener to his Ringer podcasts, I make sure to listen when Chang does interviews of accomplished guests from various disciplines. I would commend two interviews in particular. The first is a March 2022 discussion with comedian and producer Nick Kroll, which mixes both humor and pathos in its discussions around work, fatherhood, and the challenges in maintaining friendships while juggling newfound responsibilities. The second is an interview with famed executive guru Marshall Goldsmith, focused on the challenges of mixing career achievement with personal goals in the elusive search for personal contentment and even happiness. In each interview, the guests bring real wisdom borne out of deep introspection to the conversation, playing off Chang’s unrelenting willingness to expose his character challenges without apology — but also coupled to a sincere desire for self-improvement. Listening to either, or both, would be time well spent.

In the latest Chang podcast episode that caught my ear, he and his guests were doing a “Debate Club” segment. The topic? “Culinary Intellectual Property and Giving Credit Where It’s Due.” It is important, however, to preface discussion of the episode with some background on Chang and IP issues. For one, he has long been known for boldness in terms of calling out others for alleged IP infractions, as with his 2012 claims that another chain was “running his concept.” He is also a prolific trademark filer and owner, with over 15 marks to his name, centering on his various restaurants and other enterprises. Yet, his status as an IP owner has not cooled his frustration at what he calls the “rampant theft” in the food industry, which he compares to the struggles that fashion houses have in dealing with “fast fashion” competitors like Zara and others.

In response to the copying he claims is endemic in the food industry, Chang proposes a licensing model for recipes, similar to what is found in the music industry. At the same time, he acknowledges that certain well-known foods are no longer eligible for IP protection, such as the chocolate chip cookie, which Chang uses as an example. Despite the acknowledgment of the public domain, however, Chang still proposes that if he comes up with a “new” chocolate chip cookie, or if he came up with the “pliable ganache” that pastry chef Alex Stupak is credited with originating, then he “should be getting some royalties for that.” Putting aside the imprecise references to things that may be patentable concepts, versus trademarks or copyrights, it is interesting that Chang does not reference Mrs. Field’s Cookies when talking about IP around chocolate chip cookies, as Mrs. Field’s recipe is a well-known example of a food-based trade secret, similar to the formula for Coca-Cola.

Nor is Chang’s call for greater IP protection in the food industry met without counterpoint by his guests. In an initial rejoinder, one of his guests points to the challenge of reducing accessibility and follow-on innovation when recipes are subject to IP protection, even setting aside the traditional ethos around sharing recipes that has long been present in human cultures around the world. Later on in the discussion, an even more potent challenge is raised to Chang’s proposals, namely the lack of a viable enforcement mechanism in the food industry for policing IP, including the low monetary stakes that would make the cost of enforcement prohibitive relative to the benefit — for all but the biggest companies, at least. In fact, Chang points out how megabrands like Twinkies and Coca-Cola are able to trademark their names and protect their recipes, while also retaining the ability to copy the innovations of others at scale. While those pathways may be open to the big players, Chang also laments the popular notion that food should be cheap, which in his view serves as a potent roadblock to innovators getting proper credit for their contributions in the food industry.

Ultimately, while the debate ends up rambling a bit — and the precision of IP nomenclature in use is lacking — it is always interesting to listen to accomplished business people debate the proper balance of IP protection in their industry. As someone with a history of innovation in a sometimes staid industry, it is not a surprise that Chang leans toward a position of rewarding IP owners. Chang’s frustration at the lack of respect for IP in the food industry is palpable, especially when he sees innovators in other industries rewarded through workable mechanisms for balancing access to IP protected material and the need to foster additional innovation. Still, he recognizes the presence of a public domain, as well as the powerful sociological forces that surround food culture and cut against robust IP protection in the industry. At a minimum, the discussion is both interesting for its content, as well as a potent reminder that we all benefit as a society from increased IP literacy. The more robust debates we can have around IP issues the better, but we must also recognize that the more informed the debaters are on proper IP terminology and scope, the higher the quality of the discourse. It is always a treat to hear IP discussed by nonprofessionals. But the treat is also sweeter when the proper IP literacy ingredients are present.

The jury has spoken, but it is a near certainty that they won’t have the last word.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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