Tasty Mock Trial Event Finds that Risotto can be Protected by Intellectual Property Rights

In a recent mock trial event hosted in a museum in Milan, Judges held that a superstar chef's "Riso, oro e Zafferano" (rice, gold and saffron) was protected by various forms of intellectual property rights. Whilst not a reflection of current law, this event was an interesting means by which to test the law relating to the protection of taste, smell and copyright in respect of food.

Facts

Some of the chef's most talented assistants managed to become famous chefs in their own right and had the opportunity to learn the recipes directly from the author.

Cooperation with one such assistant named Rossi, ended following a discussion between them subsequent to which Rossi decided to open a restaurant on his own serving a dish reproducing "Riso, oro e zafferano" under the name "Risotto oro e zafferano, omaggio a Marchesi" ("Rice, Gold and Saffron, A tribute to Marchesi"). The only difference between the two being the type of rice use (Carnaroli v Basmati) and the quality of the Basmati being poor.

Marchesi, holds a trade mark registration for the image of his risotto as well as a design registration.  He also believes that his "dish" is protected by copyright. Accordingly Marchesi commenced proceedings before Rossi before the Court of Milan.

A Court Technical Expert from the Italian Supervisory Board for Rice was appointed.  His technical report explains that the rice used by Rossi does not have all the technical qualities for a good risotto and does not meet the minimum quality standards set by the Italian Law (being a rice of a very poor quality).

The lawyers in attendance were then invited to discuss the case before the Court.  Discussion focused on the identification of the relevant consumer for trade marks and of the informed user for design following which the Court rendered its decision.

The Mock Court found, firstly, that the superstar chef was the proprietor of a valid registered trade mark for his dish – not implausible – and that this had been infringed. Secondly, it was found that a registered design for the dish had been infringed. Additionally, copyright subsisted in the dish and the infringing party was found to have committed an act of unfair competition.  The reasons why are considered in further detail below

Trade Marks

For the Trade Mark, much of the discussion, as in real world litigation, focused on the identification of the relevant consumer or public in respect of whom the trade mark(s) must be considered. In respect of trade marks, infringement territory begins where the public become uncertain about the origin of goods sold under a particular mark.

Registered Design

For the Registered Design, much of the discussion focused on identifying the relevant informed user. In the UK the test for infringement of a Registered Design can be summarised very briefly as whether or not the alleged infringing design forms a different overall impression on the informed user to that of the design.