10 Things All Restaurant Owners Need to Know About Trademarks
From rising food costs to increasing competition, today’s restaurant owners face a number of challenges.
One of the biggest hurdles is building and maintaining your name and reputation.Your restaurant name is your identity, and the way that customers distinguish you from your competition.Protecting your name with a restaurant trademark should be at the top of your list of priorities. Let’s take a look at the top 10 tips restaurant owners should keep in mind when considering the trademark process.
1. Incorporation is not trademark registration.
Many business owners mistakenly think that filing incorporation papers for your restaurant automatically extends some sort of trademark protection for that name in the process. However, this isn’t the case. While it is true that your incorporation request will be denied if you try to incorporate “Jackson’s Country Cooking, Inc.” in your state but another business is already incorporated with that name, it is completely separate from the trademark process. An approved state incorporation request does not mean that you have free and clear rights to the business name — it simply means that no other business in your state may incorporate with that name. Businesses in your state can incorporate with similar names, and businesses in other states can incorporate with the same exact name.
The reality is that the incorporation and trademark processes are two completely different processes. For the greatest level of protection for your restaurant, file for federal trademark protection for your name.
2. Consider the future.
Some of today’s most popular restaurant chains and franchises started out as a single, standalone location. And even if you don’t plan on expanding past your local community, you don’t know what the future holds. Protect your restaurant brand and keep your options open by going through the process of obtaining a trademark on your restaurant name.
Filing for federal trademark protection for your name not only gives you recourse if a competitor opens a similarly named business just down the road from yours, but it also gives you (and anyone who may want to buy your successful restaurant) the option to grow locally, regionally and even nationally, with the confidence that another brand won’t be able to benefit from your hard work.
3. Hire a professional to do a trademark search.
Don’t rely on a do-it-yourself trademark search for restaurant names you’re considering using. Invest in your restaurant and your brand by hiring a trademark attorney to do the search for you. Not only do professional trademark attorneys have access to specialized software that allows them to do more comprehensive searches, but also they have the real-world knowledge and experience to help you avoid common trademark search pitfalls.
4. Trademark your name before your logo.
If money is an issue (and in the restaurant business, when is it not?) you should obtain a trademark for your restaurant name first, then your logo. You may think that registering your restaurant name within your logo is the equivalent of killing two birds with one stone, but that simply isn’t the case. The reality is that registering your logo only protects your restaurant name in that particular graphic context. This means that a trademark does not protect your name, in plain text. Also, if you change your logo, you need to file a whole new trademark application. For the broadest level of protection, trademark your restaurant name first, then file applications for your logo and other important brand elements later.
5. Monitor your trademark for evidence of infringement and take action if necessary.
The United States Patent and Trademark Office (USPTO) puts the onus of protecting a trademark directly on the trademark owner’s shoulders. So it’s up to you to ensure that another restaurant is not infringing on your rights. For starters, set up a Google Alert with your restaurant’s name to help you keep an eye out for potential infringement activity.
Additionally, the trademark attorney who helped you file your trademark application likely also offers monitoring services where they keep an eye on trademark filings and flag any potential issues. Make sure you’re constantly policing your trademarked restaurant name, or you may lose your exclusive rights to use it.
6. Choose a restaurant name that is eligible for trademark protection.
Arbitrary or fanciful names offer the greatest level of trademark protection, while names that are generic or merely descriptive may not qualify for trademark protection at all. For example, if you’re opening up your new barbecue restaurant, naming it “Blue Moon Bar-B-Que” or “Holy Smokes Barbecue” is more likely to obtain trademark approval than a name like “Best Barbeque” or “Texas Barbecue.” As you’re considering name choices for your restaurant, work with a trademark attorney to ensure that the names are available and have a good chance of receiving trademark protection.
7. Consider getting trade dress rights for your restaurant design.
If elements of your restaurant design are unique enough, you may be able to prevent others from using your unique design in their restaurant by receiving trade dress protection on your design. Just as computer giant Apple was able to receive trade dress protection covering the iconic design of its Apple stores, you may be able to garner trade dress protection for your own unique concept.
Obtaining a trade dress right for a restaurant design is oftentimes more difficult than getting a trademark for a symbol, name or logo, but it can be done. If you think your restaurant design may be unique enough to qualify for trade dress protection, work with your trademark attorney to determine the best way to move forward.
8. File for trademark protection of restaurant merchandise.
To file for trademark protection for your restaurant name, you’ll select Class 43 on the application that covers food services including restaurants. However, if you’re also thinking about selling glassware, t-shirt, coasters, Frisbees, and other items with your restaurant name, you’ll want to select additional classes on your trademark application. Your filing fees will increase due to the increased number of classes in which you’re filing for trademark protection, but it is the best way to ensure that another business doesn’t inadvertently or intentionally step on your brand’s toes.
9. Don’t assume that your trademark coverage carries over if your business changes.
If you’ve recently morphed your business from a specialty wine shop into a full-fledged restaurant, don’t make the mistake of believing that the trademark you received for your wine shop will protect you in a restaurant environment.
Similar to needing to register your trademark in different classes if you plan on selling branded merchandise, the class you registered your trademark in as a wine shop is a completely different class than restaurants and other food service businesses. Just because you have trademark rights to the name in one industry doesn’t mean you automatically get rights to it in another industry, even one that’s closely related. If you’re uncertain whether or not you’re covered, consult a trademark attorney.
10. Stake a claim to your social media handles.
Regardless of if you plan for your restaurant to become active on social media, it’s important that you have control over the pages that are registered with your trademark. Otherwise, you may be faced with customer confusion or with another business siphoning off your customer base.
If you haven’t already, visit the top social media sites like Facebook, LinkedIn, Pinterest, Instagram. Register your trademarked name as that page’s social media handle.Find another entity is occupying an account that uses your trademark name? If you own a federal trademark registration, you will be more likely to obtain that piece of social media real estate back without much more than a letter requesting the page be returned to you. That being said, before taking any legal action you should always consult an attorney.
Clearly, obtaining a trademark for your restaurant name can have a huge impact on your long-term success. By following these tips, you’ll be ahead of the pack and ready to take advantage of all of the benefits that a restaurant trademark has to offers.
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