Circus of Errors

Unwonk - Episode 11: Circus of Errors

We learn about the valuable intellectual property of circus peanuts, the preferred color spectrum of douchebags, and a stupid question and answer about dog bites.

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Please enjoy the links to additional information relating to the questions on this episode - for people new to Unwonk, these quotes and links won't make much sense until you actually listen to the episode:

"It's really strange. You don't think of banana going with a peanut or orange color. But that's the way it has traditionally been marketed." - Greg Spangler, chairman and chief executive of Spangler, maker of circus peanuts.

"It's a hellhole of desperation." - Governor Jerry Brown on California's traffic fine system, particularly as it applies to low-income residents.

[Episode Keywords: Douchebag, Floppy Donkey Nuts, Stupid Dog Bite Question, Circus Peanuts, Why I Don't Trust Teachers, Traffic Judges Must Feel Really Trapped]


Episode Transcript

UNWONK PODCAST - EPISODE 11: CIRCUS OF ERRORS

Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. 

As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

On this episode of Unwonk, we learn:

  • The valuable intellectual property of circus peanuts,
  • The preferred color spectrum of douchebags, and
  • A question and a stupid answer about dog bites.

This is Unwonk. We respond to your legal questions with relevant and useful information. If you would like to submit a question, please visit our site at Unwonk.com.

When you’re there, you can also find where to follow us on twitter, facebook, and all the social things. And make sure to tell your friends about us. Because friends are cracking awesome.

Even though the  general information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who loudly asks “is if five o’clock yet” immediately after arriving at work - really - you’re a downer and everyone else is too polite to let you know.

And now, our first question.

Hi. I'm thinking of opening my own restaurant, which is going to have a circus theme but still cater to adults and not children (something I don’t think never been done before). I've been working on some recipes for a long time but want to make sure nobody steals them. Can I copyright, patent, or trademark them? I’ve been very successful as a serial entrepreneur in other kinds of businesses, including marketing and ecommerce, and now I want to follow my passion but need to be extra careful about the magic goes that into my “secret sauce,” so to speak.

OK. First - just to get this out of the way - when you say “the magic that goes into my secret sauce,” you sound lurid, creepy, and grandiose all at the same time. Which makes me want to not be near you, but then want to touch you, all at the same time. Well done. 

And kudos for following your passion. I’ve always admired the ability of people to start a business, fail or succeed, and move on to something else until they’re doing what they’ve always wanted to do. When I follow a passion, however, it usually ends with me in me in a dark bathroom, sitting in an empty tub with a bottle of gin, swearing never to follow any passion ever again. Also, I admire your moxie even though you used the words “serial entrepreneur,” which just made it into the Oxford thesaurus as the number one alternate meaning for “sociopathic jackass.”

Now, to your question: Can you protect a recipe from an intellectual property perspective? Well, as an experienced business person, you already cited some of the main categories of intellectual property protection: patents, trademarks, and copyright.

Let’s take each of those one by one and I will explain exactly how horribly it doesn’t work out in each case for you. 

Patents. The core purpose of a patent is to incentivize people to create things that are beneficial to society. We do this by granting a temporary monopoly that to the inventor for a certain period of time. The power for congress to govern how patents work comes straight from the constitution. Under current law, a patent can be granted for a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This seems perfect. What is a recipe but a list of things that tells you how to process those things into a new thing? Like turning salad ingredients into a salad. 

Well, there’s more to a patent than creating something. If that were the sole requirement, patents would be given out like participation ribbons at a millenial kids sports game in the 1990s, with everyone winning, and the actual winners feeling no sense of accomplishment, eventually just kind of giving up on real achievement and settling into a life of mediocrity. 

No, for something to get a patent, it ostensibly also needs to be novel, useful and non-obvious. In other words, patents are supposed to be awarded to new and clever things that are going to benefit humanity in some way.

What’s one activity that humans have been doing since the beginning of humans that keeps us alive as a species? No, gutterbrain, not that activity. Cooking. Making food. We could not have gotten very far without making food. You are, in fact, the successful result of millions of years of your ancestors preparing food and eating it - and also not dying in a thousand possible ways. Given this history of preparing food, it’s going to be very hard to come up with anything that is either so novel or non-obvious that it would rise to the level of receiving a patent. What about    usefulness? Well, eating is useful, but not so much that a patent would need to be rewarded for the mere composition and preparation of ingredients.

However, certain methods and tools of preparation, could be novel, useful and non-obvious. Take your circus food, for example. And I have no idea what you mean by circus food as a theme for a restaurant. But let’s take circus peanuts, those brilliant orange and inexplicably banana flavored hardened foam things with a rounded top and flat bottom - just like real peanuts with flattened bottoms. Someone may have a patent on the machines that help make those vile nuggets of the devil. Someone else may have patents on the excrecious chemicals that make up the artificial flavoring and structure of that whore turd of a snack. A more modern example could be of someone like Wylie Dufresne or another chef deeply steeped in molecular gastronomy - those sous vide circulators certainly have patents. Wylie’s Polyscience Anti-Griddle Flash Freezing machine certainly has some patents. But, again, these are tools and not recipes.

So, let’s leave patents to big pharma, people who make metal and plastic machines, and, of course, the patent trolls ruining it for everyone. 

Now, copyright. We’ve talked about copyright before on this show, but that was about whether your dance moves are copyrightable. And if arranged the right way, dance moves are copyrightable. But guess what. Your recipe is not. That’s right, your string of expressive dance moves, no matter how bad or embarrassing, has more copyright protection than your recipe. Why? Because, going back to the beginning, a recipe is just a list of ingredients and things to do with them. There’s no larger meaning or personal expression there that makes the recipe something that’s special special, making it bigger than itself. This does NOT include how the recipe is visually arranged, along with specific text and commentary in the recipe, and it does not include artwork or photos that go along with the recipe. BUT, I get the feeling here that you’re not in it for the cookbook but trying to prevent your recipe for your Big Top Freak Weenies with a side of Clown Batter from falling in the wrong hands, whatever those are.

What’s left in the intellectual property arsenal? Trademarks. This is one of those inconceivable words for lawyers. Not meaning something that can’t be conceived, but as used in the princess bride as in: “Trademark. You keep using that word. I do not think it means what you think it means.” We hear people say they’re going to trademark an idea. Or trademark a book. No. The poor trademark is often misunderstood. And it’s meaning is hiding in plain sight.  A trademark includes any word, name, symbol, device, or any combination, used to identify and distinguish the goods/services of one seller or provider from those of others. In other words it’s a mark used to distinguish your product in your trade. Trademark.

So, right away, that’s not going to protect the guts of your recipe. If, however - and I’m going along with your circus theme - whatever that is - you named your recipe Floppy Donkey Knockers - do they have Donkeys at the circus? - whatever. If you named it that and sought out to register a trademark, and actually received it, you would be presumed to have the right to use that name for that dish to the exclusion of everyone else. There are many classes for trademarks, though, so if the truck nuts people wanted to pivot and re-imagine their business model by using rubber donkey nuts instead of rubber human nuts and they called those donkey nuts Big Floppy Donkey Knockers, there’s a good chance you couldn’t stop them. Because your use would be limited to the dish. 

That… went in a whole different direction than I was  expecting.

So, out of the three things you mentioned - patent, copyright, trademark - your recipes are STILL not safe.

What’s a budding circus themed restaurateur to do?

Quick sidenote: back to circus peanuts. I actually love circus peanuts. I love their fake texture and flavor, almost as much as I love it’s confecitionary oddity counterpart, candy corn. There, I said it. No taking that back.

You failed to mention the strongest thing you have going to protect your secret recipes. And like trademarks - it’s hiding in plain sight: Trade Secrets. What’s a trade secret? A creature of state law. There is no direct federal law for trade secrets, though there are pieces of federal law that can help, and there’s always a faction of some group trying to get federal trade secret protection.

A trade secret is the opposite of a patent, copyright, or trademark in terms of publicity. It is - by design - anything but public. Generally, if you’ve got something that adds value to your business, and you keep it secret, it’s a trade secret. What’s the most famous trade secret in the world? No, not the source of my ineffeable charm. It’s a recipe. Coca Cola’s secret formula is the utter definition of secrecy: Developed in 1896 and only known to a few people sworn to secrecy, it wasn’t written down until 1916, when it was used as a collateral for a loan to purchase the entire company. That piece of paper lived in Guaranty Bank in New York until 1925, when it was then moved to a bank vault in Atlanta, where, presumably, all the other vault occupants got sick of hearing how much better the pizza was in New York and how the New York subway is way better than MARTA. And in the vault it stayed until 2011, when it moved to a vault onsite at Coca Cola’s headquarters.

And that’s how you keep a trade secret, friend. In a fucking vault. Well, if you can’t do a vault, you have to use reasonable efforts - or whatever your state law requires of trade secrets to keep it confidential.

So, hurrah! We found a way to protect your precious well-conceived and surely not stupidly circus themed recipes.

Wrong.

It may work for Coca Cola and other companies that have predictable operations. But you’re not doing that. You’re not doing predictable. You’re doing a restaurant. Are you telling me that between your chef, sous chefs, line chefs, bussers, dishwashers, waiters and other front of house staff - and keep in mind the massive turnover, insane hours, and incredible stress all of this is subject to - are you telling me that these people are going to keep your secret recipe secret? Of course not. You also need to consider restaurant culture, which, in a lot of ways, is open source. Chefs are constantly sharing recipes, techniques and otherwise collaborating on stuff. You’re going to have a very hard time spending so much energy on trying to keep something secret that likely won’t stay secret. And if someone down the line gets a copy of the recipe without having stolen it from you, well, your secret is no longer secret.

So, all four rings of your circus are exhausted. What legal advice is there? Surprisingly - or not surprisingly, if you’re a business attorney - the real answer is to execute with excellence, build a brand and reputation, and see what happens. If your secret recipe gets out, so what. If you’ve done it right, copycats will never be the original, and you’ll be seen as an innovator. 

Now, excuse me, I have a table at Straw, a circus themed restaurant here in San Francisco. Oh, other tip: make sure you do some exhaustive research next time you have an original idea. 

I was pulled over and ticketed for running a red light. I looked over my computerized citation and noticed the Driver’s ID on the ticket does not match what is on my license. I still plan on appearing and paying whatever fines because I was caught breaking the law, I was just wondering though.....If I was the type to shame our patrolmen instead of respecting their civic duties....would I have a case?  Thanks. 

Hey, Ricky. Sorry about the ticket. And good for you for stepping up and paying whatever fines. 

However, since you’re curious, let’s see whether a mistake like this could get you out of a ticket. 

Obviously, there’s been a lot of talk about cops and QUOTE mistakes UNQUOTE in the press recently. That’s a whole different thing. That’s an issue of systemic abuse of power. What we’re talking about here is a simple error. 

Despite bureaucracy, training and vigilance, mistakes happen.

In the first grade, I was a horrible student. Not that I wasn’t smart. I was just lazy. I hated doing homework, which in those days consisted of word searches and other nearly brainless things.     Frankly, I never quite shook the habit of being a lazy student for the remainder of my professional academic career, mostly focusing on the things that I wanted to focus on.

So, my first grade teacher was very suspicious that even though I didn’t do the assigned homework, I kept scoring high on my tests, particularly spelling tests. And these were not simple spelling tests. She seemed to delight in providing longer exams with longer words. At least, that’s what it seemed like to this first grader. Heading out to recess one day, my teacher - her name is lost to history at this point - pulled me aside and showed me a sheet of paper. It was my spelling test. She said I got a perfect score. As I smiled, she shook her head. “Did you cheat?” Those were her words. I said no but shame automatically flushed my face hot and prickly. She sat me down at a table and had me re-do the entire spelling test, not taking her eyes off of me for a secong. I remember it being a mix of words about color and food. And I remember that I had broken the words down in my head. “Orange” was “or” plus “angel” minus the “L”.  “Vegetable” was “vege” plus “table”. Basically little mnemonic type things for a first grader. Pretty damn ingenious, if I may say so.

But it failed the second time around. I had spelled one word wrong. I switched the L and E in purple. Whether it was just a mistake in due course or the stress of performing under the withering eye of a spelling test performance skeptic, we’ll never know. But the look of satisfaction on her face as she hit the one mistake out of twenty words left an indelible mark inside me - it was another first for me: the moment I realized that not all authority figures are always looking out for you - and that they often have their own internal agendas and issues to sort out. Basically, she had some of her own shit going on, and I was caught in the war between her and her own shit.

And she handed the paper back to me, a 95% failure. With a note for my parents to sign it because she wanted to set up a meeting to talk to them about what I’m assuming was how she had caught me cheating on my spelling test.

I never gave it to my parents. And the teacher never followed up, either because she was too busy handling a bunch of little kids or because she realized that maybe, just maybe, she realized that I wasn’t some scheming cheating monster but a kid who had figured out how to spell without doing crosswords.

So, back to your question. Does a mistake in your license number excuse you from a ticket? Or can you make a reasonable argument for that?

There are basically two types of mistakes that can be made on a ticket in this sense: material and not material. 

Whether something is material is a big deal not just here, but across the entire legal universe. 

Let’s talk about it for a second: Something is material if it’s important the thing that is being talked about. Let’s look at a ticket. What’s material with respect to whether it was you breaking a traffic law. Would the wrong name on the ticket be material? If it’s completely the wrong name, yeah, like if your name is Art Vandelay and the officer wrote down H.E. Pennypacker. It would be kind of hard to impose a fine on you if the name was completely wrong. But what if it was your name just slightly mispelled? What if the officer transposed two letters from your license? Welllll, that’s probably not as material - they already have your license plate, driver’s license. A tiny mistake like that would likely not be material.

Well, you’re thinking - and I know what you’re thinking… don’t forget that - what if there was more than one mistake? What if your name was off by a letter, the license plate was off by a letter, and your driver’s license number was off by a letter? The answer is: you’re now acting like that one person in every law school class that asks questions like this all the time and that nobody likes. But, with this series of questions, you’d be onto something. Each one of these mistakes alone might not be material, but all taken together, the fact that so many little things were off could be very material on its own.

Let’s talk about other things. What if you drive a white Lexus but the officer marked it as red Acura? That could be very material. On a related note, there’s a myth that red cars get more tickets. This has not been proven to be true. And even if it was, it wouldn’t be because the color red is inherently more eyecatching. It’s because red cars are more likely to be driven by douchebags. Red BMWs doubly so. And I’m not making fun of BMW drivers here. Driving a BMW doesn’t make you a douchebag, but if you’re a douchebag, you’re more likely to be driving a BMW. Make sense? Good.

Ultimately, it’s up the traffic judge. And for a single immaterial error, the judge would likely waive the error. Cops are human and everyone makes mistakes. More than a single error, and you would likely have a case. Of course, you could try to hire a lawyer who specializes in these things - but unless you’ve got your livelihood riding on this ticket for some reason, I doubt it would be worth the trouble and expense. 

It could be worth a shot, though. Maybe this officer has a repeated record of sloppiness with other tickets and the judge may want to send a message by dismissing a raft of tickets with the simplest mistake. Maybe not. Well, probably not. Again, absent those external factors, a mistake like this will be overlooked.

If you do go to court, remember to be very polite and nice to the judge. Traffic court judges have what I imagine are really crumby jobs sometimes. They just have to sit there and listen to people make excuses and play dumb.. all. day. long. Well, all judges do that, I guess, but just traffic stuff? Man. I imagine it’s like the afterlife case worker that Geena Davis and Alec Baldwin are assigned to in Beetlejuice. And that the waiting room in Beetlejuice is exactly what the crowd in a traffic court looks like. I don’t know - I’ve never been to traffic court, so I could be wrong.

Another quick tip: Some people think that if sign the ticket, you’re admitting your guilt. No. Signing the ticket just means that you’re going to show up in traffic court. If you DON’T sign the ticket, you will be perceived as an asshole and that’s how the traffic court judge and the cop will view you when you’re in court. 

So, Ricky, I’d let it ride and own up, just like you were planning. At least this wasn’t an issue about traffic cameras, which would be an entirely different topic. And you clearly know that running red lights is bad and dangerous. But, you know, everyone makes mistakes every now and then.

My dog bit my friend’s boyfriend when they were over for dinner. My dog is normally really chill and I think bit because he smelled my friend’s dog’s fur on his pants. Am I liable? Please answer in poem form.

Ok. Let’s make it quick, then. Haiku:

I need more facts here.
Dog provoked? State you live in?
Friend needs cleaner pants.

Thanks for listening to this episode of Unwonk. 

Please visit our site at Unwonk.com to ask your questions, and for lots of bonus material about the topics on today’s episode. You can also find us on twitter, and facebook, and you can also - totally your choice - tell everyone you know to listen and subscribe.

And now you can check out our ask-a-lawyer column at deadspin.com.

On the next episode, we learn:

  • Why the rubber for all tires in canada is required to contain .005% amber maple syrup.
  • How the inventor of the slinky disrupted trade negotiations between china and russia over cold war fears; and
  • How willow trees mate and have baby willow trees.