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Call This Traditional Kentucky Dessert a 'Derby Pie' and You Could Get Sued

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The term has been trademarked by Kern's Kitchen.

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"Derby pie" may be one of the most popular dishes served during the Kentucky Derby, but call it that, and you could be sued. According to NPR, the creators of the dish "are real sticklers" about what can actually be called "derby pie." The dessert is a jazzed up version of pecan pie: It's typically made with a bourbon and chocolate chip filling that is topped with nuts. It's said to be invented by Kern's Kitchen in Louisville which had the dish officially trademarked as Derby-Pie®. However, Kern's recipe — which was created in 1950 by the Kern family — is made without bourbon and features walnuts in place of pecans.

Kern's Kitchen apparently makes over 800 pies per day and goes to "great lengths to protect its recipe and technique." In the kitchen, there is a curtain that closes off the mixing area so that the filling can be made in private by the production manager.

Kern's is quick to jump to legal action. Science Hill Inn in Shelbyville, Ky. was hit with a cease-and-desist letter in the mail saying that they were violating Kern's trademark. So now they call their dessert a "chocolate pecan pie." White Light Diner in Frankfort, Ky. was sued twice by Kern's Kitchen for selling derby pie. Manager Rick Paul says that when the restaurant was first contacted by Kern's they switched the name to "I Can't Call it Derby Pie" Pie. But the restaurant was sued twice and now they called the dessert a "Kentucky Bourbon Pie."

Even national food magazine Bon Appétit felt the wrath of Kern's when they published a recipe for derby pie in one of their issues and in a hardcover book. The magazine argued that the term was a generic name of a chocolate nut-pie and they pulled recipes from magazines, menus, and cookbooks that "all referred to a ‘derby pie' without mentioning Kern's." Bon Appétit ended up settling in court, but many agree that the term should belong to everyone.

Trademark disputes are not uncommon in the restaurant industry and can happen to everyone from the smallest mom-and-pop restaurants to major fine dining chefs. In January, chef Joshua Skenes (Saison) was hit with a lawsuit by San Francisco chainlet Chubby Noodle accusing the chef of trademark infringement. Chubby Noodle argues that Skenes' upcoming fast-casual Chinese concept Fat Noodle has a "confusingly similar name."

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