Rebecca Charles, the chef of Pearl Oyster Bar is suing Ed McFarlane and Ed’s Lobster Bar for creating a restaurant that nearly clones Pearl.
Chef Sues Over Intellectual Property (the Menu)
“Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.
“The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.”
Serious Eats: Rebecca Charles is Mad as Hell and She’s Not Going to Take It Anymore: “‘I’ve looked the other way for years,’ Rebecca said. ‘I understand that chefs take dishes from the restaurants they worked in when they open their own restaurants. But Ed’s Lobster Bar is much more than a knock-off. It’s an exact duplicate of Pearl. Thirty-one of the 34 dishes on his menu are simply lifted from Pearl. The stools, the look and feel of the place, everything is exactly the same. It’s offensive. Plus he lied to me. He told me and the staff when he quit that he was leaving to open an Italian seafood restaurant. I said great. I even offered to help him. Then, six weeks later, he opens Ed’s.'”
McFarlane was sous-chef at Pearl Oyster Bar for six years before leaving Pearl to start Ed’s and much of the press coverage of the Ed’s opening mentioned the Pearl heritage.
Pearl Oyster Bar is derivative of the New England clam shack, albeit with Manhattan prices. Ed’s is not the first restaurant to follow a similar formula. Previously, Charles’ partner left acrimoniously to start Mary’s Fish Camp– a direct competitor– across the street.
But, Mary’s menu differs from Pearl’s offering more dishes and slightly different preparations. To Charles, Ed’s appears to be a clone of Pearl rather than a derivative working from the same source material. Charles asserts that some recipes at Ed’s– the Caesar salad, in particular– are based on trade secrets acquired while McFarlane worked at Pearl.
In Two Pesos, Inc. v. Taco Cabana, Inc., the Supreme Court ruled that trade dress in a restaurant is projectable if the trade dress is inherently distinctive. Note that there are a number of restaurants in NYC inspired by New England clam shacks and they seem to adopt somewhat different look and feel than Pearl. Is there a likelihood of confusion here? If the details are in fact so similar, confusion could be likely.
Serious Eats: Is Imitation Always the Sincerest Form of Flattery?
