The Most Litigious Dessert in America
Louisville-based Kern's Kitchen has asserted a trademark over the term "Derby Pie," a popular Southern dessert made with chocolate and walnuts. For decades, Kern’s has threatened and sued restaurants that include derby pies on the menu and magazines that have the temerity to share “derby pie” recipes, even though the term is widely recognizable as the name of the pie in question.
Now the company behind the most litigious confection in America is going after individual websites that post new recipes for derby pies. In order to exploit the fact that free speech is only as strong as its weakest link, the company has taken its claims upstream to the hosts of those websites, such as Wordpress.com. To its credit, Wordpress did not simply takedown the websites, but worked with users to try to resolve the issue.
To be clear, Kern's Kitchen is asserting a trademark claim on the name itself, and not a copyright claim on the recipe. That's because in the U.S., recipes aren't generally subject to copyright restrictions. As a result, websites are in the clear if they change the name to something outside of Kern's trademark.