![]() Court of Appeals for the 6th Circuit in Cincinnati found that Bon Appetit had not presented enough evidence to say for sure that "derby pie" was now generic. The judge bought the magazine's argument, ruling that the term "derby pie" had become generic. To prove that "derby pie" was a generic term for chocolate-nut pie, Bon A p petit found stories in the newspaper, recipes from magazines and cookbooks, and menus across the country - all referring to a "derby pie" without mentioning Kern's. But many argue it's too late - that "derby pie" is already a generic term.īack in 1986, Kern's sued Bon Appetit magazine for including a recipe for "derby pie" in one of its issues and then again in a hardback book. Kern's doesn't want "Derby-Pie" to become the next zipper, which explains why it defends its trademark so aggressively. "It became so synonymous with the product that now it is a word," she says. If your name starts being used as a generic term, you can lose your trademark. Liz Williams, a New Orleans attorney specializing in food law, says Kern's was smart: Once you've got a trademark, you have to protect it. So why would Kern's go to the trouble of protecting a brand name to which the public feels entitled? Paul, like many Kentuckians, felt that the name "derby pie" belonged to everyone. Paul says he's still paying off the $14,000 in lawyer fees he owes. Kern's sued Paul in 1997 and again in 2007. "I actually put up a sign after that conversation : Have a piece of 'I Can't Call It Derby Pie' pie," he says. Paul says when Kern's Kitchen first told him he had to stop selling anything called "derby pie," he decided to have a little fun with it. When I asked how long he's been making "derby pie," he was quick to correct me.Ī slice of Kentucky Bourbon Pie at the White Light Diner in Frankfort, Ky. Rick Paul, who has managed the White Light Diner in Frankfort, Ky., since 1991, has been sued twice by Kern's Kitchen. Not everyone backed down as easily as Science Hill did. "You didn't know if they'd sent a plant in to see if we were doing it or not." "You can say, 'We have chocolate pecan pie, but we do not have "Derby-Pie," ' " Fouts says. Fouts says if someone ordered a slice of "derby pie," servers had to be very careful. Science Hill still serves its pie, but changed the name on its menu. In the kitchen, a curtain closes off the mixing area so that the production manager can make the filling in private. The company goes to great lengths to protect its recipe and technique. Rupp says Kern's Kitchen now makes over 800 pies a day. And the Kerns are quite vigilant about protecting that brand name. Though lots of people in Kentucky have their own versions of what they call "derby pie," the Kern family trademarked the name "Derby-Pie" decades ago. "Derby-Pie" is said to have been created by Kern family members in 1950 as the signature item for their restaurant, the Melrose Inn.Ī view inside the Kern's Kitchen factory in Louisville, Ky. Ironically, Kern's recipe is made without bourbon, and it uses walnuts instead of pecans. ![]() What's commonly called a "derby pie" is like an embellished pecan pie: sticky, sweet filling made with bourbon and chocolate chips, covered by a hard nut top and a pastry crust. "And we never, never mentioned 'derby pie' again." The letter said that the name "Derby-Pie®" was a federally registered trademark of Kern's Kitchen in Louisville. Fouts says she and her co-workers served lots of what they called "derby pie," until one day Science Hill received a cease-and-desist letter in the mail. And they're not afraid to sue over it.įor 24 years, Susan Fouts was a hostess at the Science Hill Inn, a restaurant in Shelbyville, Ky., outside Louisville. Ironically, Kern's recipe is made without bourbon, and it uses walnuts instead of pecans.Īsk anyone in Louisville, Ky., what to eat and drink during the Kentucky Derby, and chances are good he'll tell you two things: mint juleps and "derby pie."īut while bartenders around the country make mint juleps without controversy, things are a little more complicated for "derby pie." The creators of the pie are real sticklers about what can be called a "derby pie" - and what can't. What people commonly call "derby pie" is like an embellished pecan pie: sticky, sweet filling made with bourbon and chocolate chips. The Kern family is said to have created the pie in 1950 as the signature item for a restaurant it used to operate. A slice of "Derby-Pie" from Kern's Kitchen.
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