It was the tweet heard ‘round the fast food world. After quietly launching its own version of the chicken sandwich, Popeyes broadsided rival Chick-fil-A on Twitter in what turned out to be the opening salvo in a new high-stakes conflict—the chicken sandwich wars.
Within two weeks of launching the new item, Popeyes sold 1,000 chicken sandwiches per store a day. Popeyes also saw its store traffic double and its store sales jump by 38% in Q4 2019 alone. At the end of those two weeks, the sandwich was sold out nationwide.
Taking stock of Popeyes’ meteoric success, other fast-food restaurants quickly followed. As of July 2021, at least 20 different fast food restaurants had either revamped their chicken sandwich or introduced it to their menus. Even Airheads, a candy producer, took part in the chicken sandwich wars by revealing the Airheads Candy Chicken Sandy for one day only.
Perhaps most fascinating about the chicken sandwich craze is not only has chicken been America’s meat of choice for decades, but the chicken sandwich itself is not a new phenomenon. Chick-fil-A debuted its version of the chicken sandwich as early as 1964, and several other fast food restaurants, like Wendy’s and Arby’s, have had chicken sandwiches on their menus for years.
A likely answer to this chicken riddle is a combination of social media, the perception of chicken being a healthier option to beef, and the impact COVID-19 continues to make on the food industry. For example, following restaurant closures and restrictions, fast food took off and the affordability of chicken sandwiches over other food items was a possible draw for frugal consumers.
With all these various fast food restaurants entering the fray, why did Chick-fil-A or other early players in the chicken sandwich game not block these upstarts with copyright or patent infringement injunctions? A 2015 court case and trade secret law help shed some light on this question.
In 1987, a man by the name of Norberto Colón Lorenzana claimed to have invented the chicken sandwich while employed for a Church’s Chicken franchise in Puerto Rico. While Church’s Chicken benefited from his alleged creation, Lorenzana did not. In 2014, Lorenzana filed a complaint in an attempt to regain the earnings for his creation.
Unfortunately for Lorenzana, the United States Court of Appeals for the First Circuit disagreed and ruled that: “a recipe … listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun … is quite plainly not copyrightable work.” While the Copyright Act of 1976 protects novels, films, and other works, culinary creations are not covered. Thus, chefs and restaurants must turn elsewhere to protect their creations.
Trade secret law has become the protection of choice over patent law for recipes in the food industry because a trade secret can grant proprietary rights in perpetuity while a patent only lasts for 20 years. In addition, a trade secret remains an enigma while a patent requires the inventor to actually describe how his invention works. The kicker with a trade secret is the inventor must take reasonable steps to protect the secret (like Chick-fil-A placing its recipe inside a vault) or risk the trade secret becoming public knowledge.
Due to the inability to copyright the chicken sandwich and the unwillingness to release their recipes, Chick-fil-A and other restaurants make do with trade secret law and its penchant for fair competition. Thus, the chicken sandwich wars will continue to rage to the delight of hungry consumers everywhere.
Jonathon Ballantyne is a third-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in Political Science from Washington and Lee University and served as a class representative on W&L’s Executive Committee from 2013-2015. Upon graduation, he intends to practice transactional law.