When today's pizza meets ancient law: how would you decide?

One of the more challenging exercises in legal thinking is to imagine an alternative framework for fashioning the law. IP is no exception. In an IP world where international agreements homogenize the way that we view intangible assets, it is refreshing sometimes to ponder how things might be conceived differently. Against that backdrop, IPKat published on January 25, 2017, a review of Professor Neil Netanel’s book, “From Maimonides to Microsoft: the Jewish Law of Copyright Since the Birth of Print.”

The review described Jewish law “as a unique, ancient and perpetually evolving body of rules, maxims and principles.” The review went on to say that—

“…in every legal system, a balance must be struck between achieving justice in the individual case and providing a general level of predictability and stability. Jewish law veers closer to the former than the latter, while secular legal systems lean in the other direction.”

The timing of this review of Professor Netanel’s book, and the questions that it raises about the modern application of Jewish law, reaching back to Talmudic law of ancient times, could not have been better. The New York Times reported on March 29th (“In Brooklyn’s Kosher Pizza War, Modern Tastes Battle Ancient Law”) on a fascinating decision given by the Jewish Rabbinical Court (known as a “beit din”) of the Borough Park neighborhood in Brooklyn, New York.

At issue was a dispute between two restaurants, both offering a fare of kosher food. The plaintiff, Mr. Daniel Branover, is an owner of an up-scale kosher restaurant, known as Basil Pizza & Wine Bar, located in the Crown Heights neighborhood of Brooklyn and in operation since 2010. The specialty pizza pies are a mainstay of its menu. The defendant, Mr. Shemi Harel, last month opened a pizza shop called Calabria, located directly across the street from the Basil restaurant. As described in the article—

“With its graffiti-style décor and casual, pay-at-the-counter dining, Calabria is very different from sleek, modern Basil, where weekend diners often wait two hours for a table … [and] whose customers pay as much as $24 for individual pies.”

Branover took issue with Harel’s conduct and sued, reportedly on the ground of what is called in Hebrew “hasagat gevul”. The term can be translated as “trespassing” or “unfair competition.”, depending upon the circumstances. It was claimed that Calabria sought to elicit information from employees of Basil about Basil’s most popular pizzas and the technique for making them. Not only that, but Calabria would approach Basil customers as they waited outside for Basil for a table to come open. And so, the question—legitimate competition or a violation of “hasagat gevul”, as it has been interpreted and applied by rabbinical authorities in a variety of settings over nearly two millennia?

The Rabbinical Court, in its decision given in Hebrew, sided with Branover, focusing on the proximity of the two restaurants, Branover’s investment, the reputation that the restaurant had earned, and the “similarities in the appearance and concept” of the respective pizza offerings. What is important for a claim based on “hasagat gevul” in such circumstances is the effect that these factors would have on Branover’s livelihood. In principle, perhaps, the court could have concentrated on the proximity between the two restaurants and simply ordered Calabria to move to another location. But it seems that the ability of Harel to make a living was also taken into consideration.

Accordingly, Calabria was ordered to change its pizza offerings to “regular pizzas”, further described by the court as “New York-style pizza”, without providing further guidance on what it intended. Calabria now claims to sell “New York-style pizza”, but in the form of rectangular slices. That seems unacceptable to Branover, who insists that a slice of New York-style pizza should be in the form of wedged slices cut from a round pizza pie. The article reports that Branover is contemplating the filing of a civil law suit. How a civil suit will play out is not entirely clear to this Kat, who has always understood that a rabbinical court proceeding is a type of arbitration. As in any arbitration, the answer may lie in the terms of the arbitration agreement.

More generally, this Kat wonders whether Branover would have prevailed under any other legal system and if so, under what set of legal principles. Circling back to the review of the Netanel book, Jewish law tilts to “achieving justice in the individual case” as compared to “providing a general level of predictability and stability.” The claim of “hasagat gevul” would seem well-suited to give expression to this approach to legal decision-making.

A thanks to Katfriend Axel Nordemann for bringing this matter to the IPKat’s attention.