the above-mentioned Thomas Keller’s Salmon Cornets do, this might fall under the category of service trademark.97 Trade dress enforcement raises several problems. Proving trade dress infringement requires the plaintiff to prove that the defendant´s use of his trade dress or the plaintiff’s trademark causes, or may cause, confusion to customers as to the source of the product. This may be difficult to prove for presentation of the dish, that is, food plating. Unlike the well-known Coca-Cola bottle or of Toblerone packaging, restaurants’ food “plating” styles are not ubiquitously known, and customers are unlikely to believe that the copying restaurant’s dish is somehow associated with the original. Nevertheless, this will depend on the circumstances of each case.98 The scope of protection would be very narrow if a chef sought protection only for a signature dish. Obtaining protection for each dish on a menu would be very inconvenient and not very accommodating for changing menus and dishes. Nevertheless, authors like STRAUS rightly point out that trademark law, trade dress (and we add unfair competition rules) are areas with an expansionary history and may prove to be the most hopeful frontier to protect signature dishes.99 VIII. OTHER WAYS OF PROTECTING CULINARY CREATIONS AND THEIR PRESENTATION Unfair competition rules, including trade secrets, non-disclosure agreements, fiduciary duties and social norms, are other ways of protecting gastronomy, including three-dimensional food presentation.100A culinary performance can also be protected by related rights.101 Culinary databases may also be protected by the sui generis right of the manufacturer of databases related to the culinary world.102 Because, in this study, we are mostly dealing with food aesthetics, we didn’t mention patents or utility models. But if the culinary creation is a new solution for a technical problem, with industrial applicability, patents can be the right form of protection.103 New utensils and cook robots can also be protected by patents or utility models. 97 For a deeper approach see STRAUS, “Trade Dress Protection for Cuisine…”, cit., p. 242. 98 STRAUS, N., “Trade dress…”, cit., p. 242. 99 STRAUS, N., “Trade dress…”, cit., pp. 248-252. 100 With detail and examples, see ROCHA, “The Mondrian Cake…”, cit., pp. 177-179. 101 With detail and examples, see ROCHA, “The Mondrian Cake…”, cit., pp. 170-171. 102 With detail and examples, see ROCHA, “The Mondrian Cake…”, cit., pp. 169. 103 With detail and examples, see ROCHA, “The Mondrian Cake…”, cit., pp. 171-173. 256 MARIA VICTÓRIA ROCHA
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