Owner of 'Derby Pie' Trademark Sues Newspaper For Using The Term, Publishing Recipe

from the and-they're-off! dept

Long-time Techdirt readers may recall that the "Derby Pie", a notable dessert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.

But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.

U.S. District Judge Rebecca Jennings, an appointee of President Donald Trump, dismissed Rupp’s complaint in March and ruled the newspaper had used the term in a “non-trademark” fashion.

Jennings called Rupp’s complaint “skeletal,” finding he failed to establish a plausible claim that a consumer would think the newspaper asserted ownership of the mark or itself was a manufacturer of Derby Pie.

In other words, there was no chance for customer confusion because, well, The LCJ is a damned newspaper. As to mentioning that other bakeries had products that existed, the LCJ reporting on that factual occurrence had nothing to do with trademark law and is protected First Amendment speech.

But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage. Which is true, except in cases when the case has little to no chance of succeeding, which is certainly the case here. The LCJ itself responded, pointing out that First Amendment is a thing.

Attorney Michael Abate argued on behalf of the Courier-Journal and told the panel there is “no conceivable basis” for a trademark infringement claim, but also pointed out the newspaper’s speech is protected under the First Amendment.

“We’re talking about news stories that are plainly protected under the First Amendment.

Add to that the non-commercial nature of the article's recipe (the newspaper isn't selling pies or the recipe itself), the lack of monetary harm to Rupp, and the fact that these attacks are on news coverage and you have a, ahem, recipe for a failed lawsuit. Rupp possibly should be going after other bakeries using his trademark, but not a newspaper.

A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.

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Filed Under: alan rupp, copyright, derby pie, journalism, kentucky, recipe, trademark
Companies: louisville courier-journal


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  • identicon
    Anonymous Coward, 14 Dec 2020 @ 9:33pm

    desert?

    *dessert

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Dec 2020 @ 11:13pm

    'Deference' is not a magic 'I win' phrase

    But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage.

    From what I've read over the years to the extent that he's correct it just shows how pathetic his case is/was, as courts are supposed to give all reasonable deference to the plaintiff's claims in the early stages so if a case gets tossed even with that advantage it's a pretty good indication that the case is not just weak but utterly without merit.

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 14 Dec 2020 @ 11:30pm

    So, the argument is "home cooking is killing restaurants"?

    I thought that was a silly exaggeration we used to point out how dumb the home taping piracy slogans were, not something that people actually believed, but I'm done being surprised here.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 15 Dec 2020 @ 3:39am

    Lower expectations

    A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.

    One hopes it will be tossed, but these days, we expect it to go to trial.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Airoshot blast (profile), 15 Dec 2020 @ 3:47am

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  • identicon
    Anonymous Coward, 15 Dec 2020 @ 8:15am

    the District Court is now of the opinion that a publisher can avoid trademark infringement by using a recipe that includes slightly different ingredients and includes a denial that it is a recipe for DERBY-PIE despite the publication of the recipe being on Derby Day and despite the reference in the title to "Derby Pie"

    Um... yes? If the publisher is literally saying "This isn't the recipe for the trademarked pie," then how can there be any confusion?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 15 Dec 2020 @ 9:55am

    Looks like Kern's Kitchen will be eating ahem humble pie.

    reply to this | link to this | view in chronology ]

  • icon
    zyffyr (profile), 17 Dec 2020 @ 1:32am

    I just wish that the judge had come up with a reason to quote the offending recipe in the order. That way the paper (or anyone else) would have solid grounds to do a story about the case that includes it.

    "Sorry dude, we were just quoting from the judgement."

    reply to this | link to this | view in chronology ]


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