What's in a Name? It's what separates a Derby-Pie® from any other chocolate nut pie
BY SARAH FRITSCHNER, Food Editor
The Courier-Journal, 1992

Lawyer Don Cox boarded an airplane at Standiford Field bound for Charlotte, N.C. Aware that the plane contained a captive audience of Kentuckians, the flight attendant came on the intercom with a request: Did anyone on board have a recipe for Derby pie?
    
"Oh, miss?" Cox called her over to perform his duty as the lawyer for Kern's Kitchen, the maker of Derby-Pie®. He informed the flight attendant that Derby-Pie® is a registered trademark for chocolate nut pie. Other people can't use the name; it's the property of Kern's Kitchen.
    
"Our point is that there is only one source of Derby-Pie®," Cox says. "That's what a trademark is. If you want to make a chocolate nut pie, you can make a chocolate nut pie, but nobody can make a Derby-Pie® but Kern's Kitchen."
    
Annie Potts, the Kentucky-born star of television's "Designing Women," found out about the trademark after she appeared on a public television cooking show with a chocolate nut pie recipe that she referred to as Derby pie. Cox told a court about Potts' mistake. Kern's Kitchen sued the Public Broadcasting Service, Channel 15 and the producers of the show for damages. The parties settled out of court for an undisclosed sum.
    
"It happens all the time," says Cox. People say Derby-Pie® as shorthand for chocolate nut pie the way they say Xerox when what they mean is copy or copier. When they do, and Cox hears about it, he corrects them - nicely, curtly or in court, depending on the seriousness of the infringement.
    
Trademarks protect the maker's right to use the name and protect the consumer by guaranteeing that what he's purchasing is a predictable item, made by the person who owns the trademark. If you buy something called Derby-Pie® you know it's made by Kern's Kitchen and will have walnuts and vanilla.
    
Chocolate nut pie, on the other hand, is a generic term for a pie that might have walnuts and vanilla, or it might have pecans and vanilla, or pecans and bourbon, or almonds and amaretto. If your non-profit organization publishes a fund-raising cookbook and runs a recipe for "Derby Pie" the president will likely get a letter of reprimand - at least - from Cox.
    
Not so with modjeskas.
    
In Louisville, a modjeska is a candy made of soft marshmallow covered with rich caramel.
    
It was invented by Louisville candy maker Anton Busath in 1883, when the Polish actress Madame Helena Modjeska came here to perform in Henrik Ibsen's play "A Doll's House." Another candy-making family, the Bauers, started selling a similar "caramel biscuit" in 1889. Others also copied the product, which can be found under various names in shops around town.