The World Intellectual Property Organization defines a trademark as something "capable of distinguishing the goods or services of one enterprise from those of other enterprises." However, to the dismay of one seemingly bitter ex-fry cook in Puerto Rico, this definition does not include a fried chicken sandwich from a fast-food establishment.
An ex-employee named Norberto Colón Lorenzana from a Church's Chicken in Puerto Rico has just failed miserably at trying to sue the chain for not sharing any profits from a sandwich that he claims to have invented in 1987. He identifies as "the author" of the sandwich, according to an appeal from the US District Court for the District of Puerto Rico.
The sandwich—named the "Pechu Sandwich" (short for the word "chicken breast" in Spanish)—is made with fried chicken, tomato, lettuce, mayonnaise, and a bun, and was introduced to Church's Chicken menus in 1991, after Lorenzana allegedly suggested the idea for it to his employer. But it wasn't until eight years later that the sandwich was trademarked by South American Restaurant Corporation (SARCO), the franchisee that operates Church's Chicken restaurants in Puerto Rico.
And somewhere between then and now (24 years later to be exact), Lorenzana decided that indeed it is never too late to get credit where credit's due, and tried to sue the company for approximately $10 million in damages. But ultimately, it was to no avail, as his lawsuit was recently shot down by the US Court of Appeals for the First Circuit Chief Judge Jeffrey Howard. His basis: "A recipe—or any instructions—listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work."
For anyone that lives vicariously through Law and Order reruns on YouTube and wants the specs, what Mr. Lorenzana didn't anticipate is that food is not protected in the Copyright Act, though it does protect other intellectual property like works of architecture, literature, and music. Although, like anything else, there are some loopholes to successfully trademark foods, if you are willing to put in the hours and invest the money.
Or you can just develop a secret proprietary blend for one of the main components in your delicious creation that can't be replaced, and then file a patent for that. Better luck next time, Mr. Lorenzana.