I’ve already blogged about why it might’ve taken Taco Bell so long to develop the Cool Ranch Doritos Locos Taco. But if one federal SuperMax prisoner is telling the truth, there’s a much more interesting story behind the cheese-dusted receptacles of deliciousness.
In a complaint filed in the U.S. District Court for the Northern District of Texas, prisoner Gary Anthony Cole alleges that Taco Bell stole the idea for Doritos tacos from him. In fact, Cole allegs that PepsiCo, Frito-Lay, Yum! Brands, the Federal Bureau of Prisons, Congress, Satan, and others have all conspired to steal his original brilliant idea. Cole evidently sent a letter to his attorney a few years ago that included several great inventions. Among them: “Taco Shells of All Flavors (Made of Doritos).” Cole surmises that Taco Bell stole his idea from the mail and profited handsomely.
Of course, this complaint only raises the question of why nobody stole any of Cole’s other great ideas, including “Divas and Ballers Hairfood” and “Wood Binder.” But I digress.
What’s interesting about Cole’s complaint is that it relies upon intellectual property rights. Food and cuisine protection is something of a no man’s land within the IP realm. Recipes, menus, and the like usually aren’t considered protectable. See, e.g., Emily Cunningham, Protecting Cuisine Under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?, 9 J. High. Tech. L. 21, 22 (2009); see also Vasquez v. Ybarra, 150 F. Supp. 2d 1157, 1166 (D. Kan. 2001) (“After all, a taco is a taco.”). And although some scholars have argued that trade dress could prevent food theft, that doesn’t seem to be an idea that many courts have embraced. But see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) (stating, in landmark taco-related decision, that Mexican restaurant could assert trade dress claim against another Mexican restaurant). If I were advising Bell–no doubt our generation’s Nikola Tesla–I would tell him that he should instead consider a standard misappropriation claim. See, e.g., Myung Ga, Inc. v. Myung Ga of Md., Inc., No. DKC 10-3464, slip op. (D. Md. Aug. 8, 2011) (finding recipe for stir-fried squid might amount to trade secret).
I wonder too whether Cole knows that he’s going up against a plaintiff who’s sensitive to these kinds of of “idea theft” cases. In Wrench LLC v. Taco Bell Corp., Taco Bell wrestled with a claim that it misappropriated the idea for the “Yo Quiero Taco Bell” dog. A Michigan jury found that Taco Bell did take the idea and owed the original creators $30 million. That figure went up to $42 million with interest. If Cole’s claim had any legal merit whatsoever–and joking aside, it doesn’t–then Taco Bell might have been quick to settle after its $42 million lesson in defeat.
In any event, I’ll be monitoring this case closely for any additional Doritos Locos developments. If this case were to make it to discovery (here again, it won’t), I imagine we’d see some interesting evidence on how the snack-food-cum-tortilla came to be.
P.S. This case includes perhaps the best BigLaw-authored letter ever. Notable lines: “By now you should have received the taco documents. … Do not ‘put a knife’ to the staff.”
P.P.S. If you’re interested in taco litigation, then you might also enjoy Panera v. Qdoba. In that case, a Massachusetts court determined that tacos–in addition to burritos and quesadillas–do not qualify as sandwiches. Judge Richard Posner later wrote an essay discussing a similar case and arguing that a taco might be a sandwich after all.
[H/T Legal Blog Watch]