Julia Child Foundation sues Thermador over marketing campaign

By Martine Powers

|  GLOBE STAFF  AUGUST 29, 201Julia Child handpicked Thermador ovens for her Cambridge kitchen and for the set of her hit public television show, “The French Chef.” Before she died, she donated her oven, along with the rest of her home kitchen, to be placed on display at the Smithsonian Institution .

But the foundation tasked with championing Child’s legacy is now engaged in a litigation war with the oven’s manufacturer over a marketing campaign that features the culinary darling.
Since at least June, BSH Home Appliances, manufacturer of the upscale ovens, has used the chef’s image and name in magazine advertisements, the ­company’s website, and social media.
The Julia Child Foundation for Gastronomy and the Culinary Arts wants that advertising campaign to end.

“Thermador had been using Julia’s name and image as a means of endorsement in numerous marketing materials . . . in growing magnitude,” said Todd Schulkin, a spokesman for the foundation, in a statement Wednesday. “These actions . . . were clearly designed to directly link Julia with Thermador’s products in consumers’ minds with the explicit purpose of selling Thermador appliances.”
There are photos: images of a gleeful Child wielding a kitchen mallet, skewering an outsize turkey, unsheathing a cake from a pan. A photo of Child, grinning, appeared prominently on the Thermador website’s home page, though it has been removed. A company blog asserts that Child, who died in 2004, “was one of Thermador’s original brand champions.”
The foundation contacted the appliance company last month, demanding that it cease using her image and name in their marketing materials.
Child, the author of “Mastering the Art of French Cooking,” was known for being prickly about protecting her name from commercial uses.
Child “was personally opposed to endorsing products, brands or services,” said Schulkin. “She believed it detracted from her credibility as a trusted source to her many fans and colleagues who relied on her for information, guidance, and inspiration.”
Last Friday, the oven manufacturer filed a lawsuit in US District Court in Boston, asking for a declaration to allow the company to proceed with its marketing. On Tuesday, the foundation filed two countersuits in California, in Santa Barbara County Superior Court and US District Court in Los Angeles. It is seeking an injunction to prevent BSH Home Appliances from mentioning Child anywhere online or in print, and is asking for compensation “commensurate with the market value of such uses.”
Lawyers for BSH say the company’s right to use Child’s name is protected by the First Amendment. The advertisements, they contend, are simply stating a historical fact: Child used Thermador ovens to create her culinary masterpieces.
“These uses do not state or imply any endorsement by Ms. Child of Thermador products,” the lawsuit said. “Rather, use of these photos and references to Julia Child’s name and use of Thermador products reflect on the long history, significance, and influence of Thermador products on American society and culture, and Ms. Child’s documented and well-known use of those products.”
BSH Home Appliances and the Julia Child Foundation have also locked horns over where the case will be heard — an issue that could make a big difference in the outcome, said Mark McKenna, a Notre Dame Law School professor who specializes in intellectual property law.
The oven company filed suit in Massachusetts, but the foundation wants the case to be heard in California courts, where post-mortem publicity laws are thought to skew much more in favor of celebrities seeking to protect their names.
Katherine S. Kayatta, a Boston-based lawyer representing BSH, declined to speak about the case Wednesday, saying the company does not comment on pending litigation.
In the brief filed in Santa Barbara, where Child had moved in retirement, lawyers for the foundation drew a comparison between Child and her present-day domestic equals, such as Oprah Winfrey and Martha Stewart, who have used their names as a multimillion-dollar brand.
“Throughout her life, and career, Julia Child had many opportunities for commercial advancement, including entering into commercial endorsement opportunities with companies in the food and culinary industry,” its lawsuit said.
“She chose to forgo all such commercial opportunities.”