Deceptively Duped? Court says no.

Deceptively Duped? Court says no.

by Lisa C. Johnson, Esq., December 2009

Fall is here and Thanksgiving is right around the corner. Thanksgiving Dinner is one of the most American of meals and one could argue the most important meal of the year. The turkey takes center stage. Desserts are eagerly anticipated. Yet, however they're served; vegetables are still the brunt of bribes for many parents, even during Thanksgiving.

Sneaky Foods

Whether on Thanksgiving or year-round, some cookbooks suggest winning the nutrient battle by "hiding" vegetables in kid's foods. For example, mixing sweet potatoes or squash in with macaroni and cheese or grinding up spinach, putting it into brownie mix, and cooking it into the brownies.

Recently, there was quite a buzz over two cookbooks in particular that promoted the idea of camouflaging pureed healthy food in children's favorite foods. Missy Chase Lapine wrote a cookbook called The Sneaky Chef, published in April 2007 by Running Press. Six months later, the frenzy and foundation for a lawsuit began with the release of Jessica Seinfeld's similar cookbook called Deceptively Delicious. Lapine sued Jerry Seinfeld's wife alleging copyright and trademark infringement.


Just a few weeks ago the case was dismissed. In Opinion & Order, U.S. District Judge Laura Swain's dismissal cited the burden of proof as follows:

Plaintiff needed to show that she had a valid copyright; that the work in question was copied by Defendant; that the copying was illegal because a substantial similarity existed between Defendant's work and the protectible elements of Plaintiff's work.

The dismissal continued to outline the differences between the two publications. Lapine's cookbook was described as "dry" and "text-heavy." There were very few pictures and had a tone that was considered "less collegial than it is informative and lecturing." Seinfeld's cookbook was said to have a very different tone and feel - "bright and cheerful, full of different colors and various patterns."

The Court found that Lapine failed to show a "substantial similarity" between the two cookbooks and that Lapine's cooking instructions were too abstract to rise to the level of a copyrightable expression of an idea. Further, the Court found that the alleged similarities were those that are shared by cookbooks as a particular genre of books and especially those cookbooks encouraging children's healthy eating.


Trademark infringement was the next key issue that the court tackled.

Plaintiff needed to show that she had a protectible mark and that Defendant's actions were likely to confuse consumers as to the source or sponsorship of Plaintiff's product. Plaintiff needed to show a probability of confusion and not a mere possibility of confusion.

The Court compared the marks of both cookbooks and found little if any possibility of confusion. It looked at the cover of the cookbooks, words and images, and found very different drawings, colors, cover layout, patterns and fonts. In addition, the name "Seinfeld" on the cover further decreased the chance for confusion.

Getting kids to eat healthy can be tough. When people find ways to get kids to eat healthy and enjoy it; whatever it takes, that's something to be thankful for.

For more information visit:

Massa Organics

Deceptively Delicious

The Sneaky Chef

Opinion & Order