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Kern’s Kitchen Sues over Pie Trademark

Mon, 03/18/2013 - 12:06pm
BRETT BARROUQUERE,Associated Press

LOUISVILLE, Ky. (AP) — There's nothing like Derby Pie — and Kern's Kitchen is willing to fight in court to prove that.

The Louisville-based company which makes the chocolate-nut pie sued Claudia Sanders Dinner Houses over the use of the name. The suit against the Shelbyville landmark founded by the wife of Kentucky Fried Chicken creator Colonel Harland Sanders seeks an order stopping the restaurant from using the term "Derby Pie" and more than $335,000 in damages.

The dispute arose over whether servers at the restaurant were calling their pie "Derby Pie." Kern's Kitchen, which created the popular pie in 1954, holds a trademark on the term.

Kern's Kitchen's attorney Donald Cox said they asked the restaurant to stop using the term, but management wouldn't. A message left at Claudia Sanders Dinner House wasn't immediately returned Friday.

"I don't think it was on the menu. I think it was with the servers and what they called it," Cox said.

"Derby Pie" is a specific recipe for a chocolate-nut pie made by Kern's Kitchen, which has held the trademark on it for decades and hasn't been shy about going to court to protect it. Cox estimated that Kern's Kitchen has sued to protect the copyright more than 25 times over the years and that he sends out at least one or two letters a week asking people and companies to honor the trademark.

The Claudia Sanders Dinner House, in its online menu, advertises "Claudia's Kentucky Pie — Made With Chocolate Chips and Pecans," but makes no mention of "Derby Pie."

The restaurant, founded in 1959, moved from Corbin in southern Kentucky to Shelbyville. The eatery has since left the control of the Sanders family and is run by businessman Thomas Q. Settle.

Derby Pie was created in 1950 by the Melrose Inn in Prospect as a specialty pastry. The restaurant's owners and Derby Pie creators put the various names in a hat, and pulled out "Derby Pie."

Kern's Kitchen hasn't been shy about challenging others in court. In recent years, it has sued Bon Appetit magazine and a Frankfort restaurant called Rick's White Light Diner.

Bon Appetit won a legal victory when a judge in 1987 found the name to be generic, but the U.S. 6th Circuit Court of Appeals overturned that decision.

Failing to aggressively protect a copyright and trademark can make it difficult to defend after a while.

Because Kern's Kitchen owns the "Derby Pie" name, others who make similar pies have had to alter their recipes slightly or use a different name, including "Pegasus Pie," in reference to the Pegasus Parade at the Kentucky Derby Festival and May Day Pie, a reference to the first Saturday in May, the day of the Kentucky Derby.

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