For Dumpling Daughter and its newly opened rival Dumpling Girl, things are heating up in the kitchen and the courtroom, as reported by the Boston Globe, after the former filed a lawsuit in federal court in Boston asserting a host of claims against Dumpling Girl and its three owners, including misappropriation of trade secrets, unfair competition, trademark infringement, conversion, and unjust enrichment.
Dumpling Daughter claims that the individual defendants, two of whom are former Dumpling Daughter employees, opened a virtually identical restaurant using Dumpling Daughter’s confidential and proprietary recipes, a nearly indistinguishable menu, and “ordering, check-out, food preparation, and food delivery operations” that are likewise identical to Dumpling Daughter’s. The complaint alleges that Dumpling Girl’s actions have already confused several Dumpling Daughter clients, who have asked the latter’s owner if she is opening a new restaurant where Dumpling Girl is currently located (and in fact, the complaint attaches documentary evidence of such queries from customers).
The verified complaint also attaches the aforementioned menus which bear more than a mere resemblance — in fact, Dumpling Girl’s menu is a near duplicate of Dumpling Daughter’s menu. By way of example, the description for the restaurants’ respective pork ramen dishes are nearly verbatim. Dumpling Daughter’s description reads:
NOT the instant kind!!!!!!!! Classic pork broth, fresh ramen noodles, pork belly, soft egg, bamboo red pickled ginger, kombu seaweed, scallions.
In contrast, Dumpling Girl’s pork ramen dish is described as follows:
NOT the instant kind!!!!!!!! Classic pork broth, fresh ramen noodles, pork belly,
soft egg, bamboo red pickled ginger kombu seaweed, scallions.
The only changes in Dumpling Girl’s description are one fewer exclamation point and a missing comma. Nearly every other menu item is similarly alike. With these striking similarities (which, when taken cumulatively, no reasonable person could claim are mere coincidences), it seems like Dumpling Girl will have an uphill battle proving to the that its restaurant is not merely a carbon copy of Dumpling Daughter. Further compounding Dumpling Girl’s plight are alleged admissions by its employees that the purpose of the restaurant is to copy Dumpling Daughter’s concept, and their alleged attempts to hire Dumping Daughter’s vendor to manufacture dumplings and buns using Dumpling Daughter’s exact recipes.
Of course, to prevail on its misappropriation claim, Dumpling Daughter will have to prove to the court that its recipes are trade secrets; while we frequently see client lists and highly technical inventions as the alleged trade secrets in misappropriation cases, there’s no reason why recipes can’t be trade secrets under the right circumstances. In fact, an oft-cited Massachusetts case, Peggy Lawton Kitchens, Inc. v. Hogan, 18 Mass. App. Ct. 937 (1984), held that a chocolate chip cookie recipe constituted a trade secret. Accordingly, Magistrate Judge Donald Cabell will likely consider the following six-factor test utilized by Massachusetts courts in determining whether Dumpling Daughter’s recipes are trade secrets:
- The extent to which the information is known outside of the business;
- The extent to which the information is known by employees and others involved in the business;
- The extent of Dumpling Daughter’s measures to guard the information’s secrecy;
- The information’s value to Dumpling Daughter and its competitors;
- The amount of effort or money Dumping Daughter spent to develop the information; and
- The ease or difficulty for others to properly acquire or duplicate the information.
Given the complaint’s many allegations regarding the secrecy with which Dumpling Daughter protected the restaurant’s recipes and the time and expense its owner devoted to their development, the court very well may determine that the recipes are indeed trade secrets, assuming discovery supports these allegations.
Thus far, Dumping Girl has not responded to the suit, and it remains to be seen whether it will get its just desserts. Stay tuned for the outcome of this delicious dispute.