Lapine is the author of “The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals,” which was published in April 2007 by Running Press, an imprint of the Perseus Books Group. Lapine alleges that Jessica Seinfeld plagiarized her cookbook when she authored “Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food,” which was published in October 2007 by Collins, an imprint of HarperCollins.
According to the complaint, Lapine, the former editor of Eating Well magazine, began researching methods for getting children to eat healthier foods in 2002. Lapine prepared a manuscript of her book describing her methods of hiding healthy foods into foods that kids like to eat by using vegetable purees. On February 6, 2006, Lapine sent a 139 page book proposal to HarperCollins Publishers; however, her proposal was rejected. In early May 2006, Lapine submitted a second proposal to HarperCollins, which was again rejected. In June 2006, Perseus Books Group accepted Lapine proposal. The parties entered into an agreement to publish the book on August 1, 2006. Running Press released the book on April 2, 2007, and it became a New York Times best seller within three weeks.
Sometime in May 2007 while promoting her book, Lapine learned of Seinfeld’s book from an eight-page promotional brochure. Running Press sent a letter to HarperCollins on July 9, 2007, pointing out the similarities between the books. In particular, the name of the book was titled “Sneaky Secrets to Get Your Kids Eating Good Food” and the cover had a caricature of Jessica Seinfeld holding some carrots behind her back and winking – similar to Lapine’s book cover which features a caricature of a winking chef holding a finger to her lips (saying “shhh”) and hiding carrots behind her back. HarperCollins wrote back on July 31, 2007, asserting that it did not believe any changes were necessary. When the book was published in October 2007, the cover art was changed slightly so that the carrots appeared on a cutting board behind the woman’s back and the subtitle of the book was renamed “Simple Secrets to Get Your Kids Eating Good Food.” The spine, first page, and insert also include a drawing of Jessica Seinfeld holding a finger to her lips as if saying “shhh.” The complaint goes into great details on the similarities between multiple parts of each book.
Lapine also claims that Jerry Seinfeld defamed her with remarks he made to David Letterman on an episode of CBS' "Late Show with David Letterman” airing last October 29, 2007 (YouTube link here). According to the complaint, when Jessica Seinfeld began promoting her book, the media began raise questions about Seinfeld’s book. During his appearance on Letterman, Seinfeld stated, "Now you know, having a career in show business, one of the fun facts of celebrity life is wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience.”
Seinfeld continued telling Letterman:
Yes, I have wackos, you have had wackos. I believe your wackos are very well documents. . . . Now, if you’re any good as a woodwork wacko, you are patient. You wait. You pick your moment and then spring out and go wacko. So, there’s another woman who had another cookbook. And it was a similar kind of thing with the food, and the vegetables in the food, and uh, my wife never saw the book, read the book, used the book . . . So this woman says, “I sense this could be my wacko moment.” . . . So she comes out and she says, and she accuses my wife, she says, you stole my mushed-up carrots. You can’t put mushed up carrots in a casserole, I put mushed-up carrots in the casserole. It’s vegetable plagiarism.
Seinfeld then added:
And I’m more upset, we’re sorry that she is, you know, angry and hysterical, and because she’s a three-name woman, which is what concerns me. She has three names . . . And you know, if you read history, many of the three-name people do become assassins. . . . Mark David Chapman. And you know, James Earl Ray. So that’s my concern.
Jerry Seinfeld also appeared on E! News where he said:
As a celebrity, I enjoy the fact that whenever you do something; some nut job comes out of the woodwork and gets hysterical. I know the truth that nothing ever happened. I don’t’ know if you know the story about the guy I went to college with who claimed I stole the whole TV series form him, and he sued me for 100 million dollars. So this woman is another kind of nut. You know, she thinks she invented vegetables. And she’s accusing my wife of stealing her mashed-up carrots.
Richard Menaker, attorney for the Seinfelds, said regarding the allegations of plagiarism and defamation: “Both are without merit. There's no truth in fact or law to this claim of plagiarism. The idea for Jessica Seinfeld's book came from her own experiences with her family out of her own kitchen." As for the defamation allegations, Menaker said “Jerry Seinfeld is entitled to his opinions. Even though Jerry Seinfeld is a public figure, he doesn't lose his right to free speech because of that."
While much of the publicity surrounding the lawsuit has focused on the claims of copyright infringement and defamation, hidden within the lawsuit is a trademark infringement claim as well (and thus the reason why the complaint is being showcased on this blog).
The complaint alleges trademark infringement under §32 and §43(a) of the Lanham Act. On December 25, 2007, The Sneaky Chef, Inc. received a registration for the work mark THE SNEAKY CHEF for three classes of goods and services: 1) books and other related printed materials in the fields of nutrition, food preparation and the culinary arts; 2) Educational services and a television show in the fields of nutrition, food preparation and the culinary arts; and 3) Providing information in the field of food preparation and the culinary arts. An application for THE SNEAKY CHEF logo, filed August 14, 2007, for the same three classes of goods and services is still pending. The company also filed two additional intent-to-use applications on October 28th and November 24th for THE SNEAKY CHEF and THE SNEAKY CHEF (and Design) for two classes of goods (cooking equipment and accessories and Food products, namely, purees used as ingredients of foods; fresh pureed fruits and pureed vegetables; frozen pureed fruits and pureed vegetables).
Lapine argues that Seinfeld’s use of a line-drawn caricature of a female chef hiding carrots behind her back and winking and the image of a female holding a finger to her lips as if to say “shhh” is confusingly similar to Lapine’s logo of a caricature of a winking chef holding a finger to her lips (saying “shhh”) and hiding carrots behind her back.
Lapine also asserts trademark infringement injury to business reputation under New York law. For the federal trademark infringement, Lapine seeks disgorgement of all profits from the book. For the above two state law claims, she seeks the same as well as triple damages.
The trademark infringement allegations are fairly weak – thrown in by her attorneys no doubt to cover all bases. It is not clear from the complaint how Seinfeld’s book infringes on the THE SNEAKY CHEF word mark. And as for the caricatures, while the goods are related, the marks are not very similar and Lapine's logo is not very strong.
I will leave to others to opine about the merits of her copyright allegations – except to say that I think she has a compelling case.
As for her claims of defamation, when I saw Seinfeld make his comments on Letterman, I felt he went too far in his “wacko” comments. (Seinfeld left out the two most important three-names: Lee Harvey Oswald and John Wilkes Booth.) Of course, comments made in poor taste do not necessarily amount to defamation.
Because Lapine does not appear to be the extortionate “wacko” that Seinfeld has portrayed her to be, I would hope that Seinfeld does the right thing and use that “Seinfeld” money to reach a confidential settlement rather than spending it defending this case with the reasonable chance that he could lose.