Tricking youngsters into eating healthy: not an exclusive idea

On April 28, the 2nd United States Circuit Court of Appeal upheld the District Court judgment in Lapine v Seinfeld. The defendant, Jessica Seinfeld, is the wife of comedian and well-known breakfast cereal lover Jerry Seinfeld. Despite her husband’s tastes in food, in 2007 she published the cookbook Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, one of the best-selling books of 2007.
 
The court found that Jessica Seinfeld’s cookbook did not infringe copyright of the plaintiff’s book, The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals. The plaintiff, Missy Chase Lapine and The Sneaky Chef, Inc claimed copyright infringement, trade mark infringement, and trade mark dilution in regard to Seinfeld’s book. Both books, published in 2007, discuss how to make children eat healthier by hiding healthy food in “kid-friendly” dishes.

In upholding the lower court’s ruling, the appellate court conducted it’s own comparison of the books and confirmed that “the total concept and feel” of each book is very different. “Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted,” Raggi and Hall JJ stated in their decision. To the extent that the two works demonstrated general similarities, for example similar titles and illustrations of prepared dishes: the lower court’s conclusion was affirmed in that these elements constitute “scenes a faire”, that is, elements which “follow naturally from [the] work’s theme rather than from [the] author’s creativity” (MyWebGrocer, LLC v Hometown info, Inc., 375 F.3d 190, 194 (2d Circ.2004)), and so do not raise any issues. As a result, the Court of Appeal affirmed the District Court’s conclusion that the two cookbooks lacked the substantial similarity required to support an inference of copyright infringement.

As for the trademark infringement claim, the plaintiffs contended that the District Court was mistaken in concluding that there was not likely to be any consumer confusion between the plaintiff and defendants’ title and cover illustrations. After considering the overall impression of each book on a consumer and the context in which the competing marks are displayed, the Court of Appeal reached the same conclusion as the District Court: the marks are not confusingly similar.
 
The plaintiffs’ claim for trade mark dilution also failed as a matter of law for the same reasons as their above federal trademark infringement claim.

 

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