Lapine v. Seinfeld

Lapine v. Seinfeld, Slip Copy 2010 WL 1688713 (2nd Cir. 2010)

Facts: Plaintiffs had a cookbook The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals which contained many different food ideas for children. Defendants’ cookbook Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food also contained many food ideas for children. The plaintiffs claim that the defendants’ book constitutes copyright infringement, trademark infringement, and trademark dilution.

Procedural History: Plaintiffs appeal from an award of summary judgment in favor of defendants. All three issues are on appeal and the review is conducted de novo.

Issue: (1) Copyright Infringement: Are the two cookbooks substantially similar so that an ordinary observer would regard the aesthetic appeal as the same? (2) Trademark Infringement: Is there any consumer confusion between the two cookbooks? (3) Trademark Dilution: Is the mark famous, and if so, are they substantially similar?

Holding: (1) No. (2) No. (3) No.

Law: (1) When, as in this case, a work incorporates unprotected elements from the public domain, we apply a “more discerning observer” test, which requires “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed work.” (2) In an appropriate case, the similarity-of-marks factor may alone be dispositive. (3) Same as the trademark infringement.

Reasoning: (1) First, recipes for vegetable puree cannot be copyrighted, as the plaintiff claims. Additionally, the whole “look and feel” of the two cookbooks is completely different. There is no plagiarism, the colors used are different, and the types and amount of photographs used is different. (2) The marks are not confusingly similar. Defendants' depictions of a winking woman holding brownies near carrots or simply “shushing” are very different from plaintiffs' considerably less detailed and less colorful image of a female chef winking and “shushing” while holding carrots behind her back. Further, defendants' use of the famous “Seinfeld” name reduces any likelihood of confusion regarding the marks. (3) The absence of similarity from trademark infringement also applies to the dilution claim and it fails there.

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