You Can Tuna Piano But You Can’t Copyright a Chicken Sandwich

In a case reminiscent of the attempt last fall to protect pizza flavor as a trademark, a plaintiff’s argument seeking copyright protection for his chicken sandwich met with clucking disapproval from a federal court. Amazingly, that court was the 1st Circuit Court of Appeals (yes, the plaintiff appealed the District Court’s ruling), and it upheld the lower court’s motion to dismiss.

The court in Lorenzana v. South American Restaurants Corp., 2015 WL 4979373 (1st Cir. Aug. 21, 2015) clearly had fun with the facts; the plaintiffs probably knew their case was in trouble when the court began its opinion with “crying foul over the…continued sale of a chicken sandwich…,” and later, “we next pivot to the meat” of the allegations.

The plaintiff asserted in the complaint that his intellectual property rights for the recipe of his “Pechu Sandwich” and the name itself were infringed by his former employer, a franchisee and operator of Church's Chicken locations in Puerto Rico.

The district and appellate courts both correctly determined that neither the recipe nor the name “Pechu Sandwich” fit into any of the categories for copyright protection under 17 USC §102(a), citing the statute and 37 C.F.R. § 202.1(a), the substance of which is available in a Copyright Office circular to any lawyer with internet access. The court did not reach, and the defendants did not argue, the application of the work made for hire rules, which could have been relevant given the fact that the plaintiff worked for the defendant when he concocted the sandwich.

The court found that the plaintiff also failed to sufficiently plead his allegation of defendant’s fraud on the USPTO in the procurement of a federal trademark for “Pechu Sandwich” because the complaint failed to state any facts to support its conclusions.

Photo of garden-variety chicken sandwich (not the Pechu) by Tmannya (Own work) [CC BY-SA 3.0 (], via Wikimedia Commons.

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