Should You Trademark Your Restaurant Brand?
Posted by May. 19, 2017 | BY Julia Mullaney on May 19th 2017
In the restaurant business, as with any industry, you always have to be mindful of your brand, your identity, and how you’re perceived by other businesses and customers. You may have considered trademarking your brand or your frequently used terminology. Should you do it?
According to the United States Patent and Trademark Office (USPTO), the term “trademark” is defined as “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” There are two types of trademarks, and both can be used by restaurants: common law and registered. As an Eater article explained, a common law trademark is “automatic,” in that the first person to use it (say, a specific restaurant logo) automatically has a case for copyright infringement should someone try to take it. (However, this only covers the specific geographic area in which the logo is being used.) A registered trademark, on the other hand, has been registered with the USPTO, which provides nationwide protection and becomes indisputable after five years.
So are trademarks important? Yes! They help to distinguish one business from another—especially competitors, or businesses you would not want associated with yours. Trademarking is a valuable means of ensuring that nobody will interfere with your business. That doesn’t necessarily mean that nobody will challenge your product name, logo design, etc., if they have something similar, but if you have a registered trademark, the other party will have a hard time attesting that they used it first.
Although it’s important to get your restaurant name/brand/logo registered, the process does come with a few hassles. For starters, it can cost anywhere from $225 to $400 to register with the USPTO (or you can register in just your state, which will run you anywhere from $50 to $150). Once you fill out your application, it can take anywhere from 6 to 12 months for your application to be fully processed. The USPTO requires that you renew your trademark every 10 years, about $300–$400 per renewal.
Trademark infringement doesn’t necessarily mean that another business has used a logo, design, or name verbatim. If another business attempts to be deceptive without using exactly the same trademarked item, this can also be grounds for infringement. A perfect example is a 2004 legal battle involving McDonald’s. McDonald’s had registered the name “Big Mac” in many countries—including the Philippines, where another brand tried selling burgers under the name “Big Mak.” After a 16-year battle, the court ruled that the term “Big Mak” violated the McDonald’s trademark. The other company was forced to stop selling its burgers under that name. (It is important to note that registering a trademark with the USPTO only protects against infringement within the United States. We recommend conducting thorough research on the trademark laws of every country you want your product trademarked in.)
There are plenty of well-known food and brand names that are trademarked: Big Mac, Whopper, Shake Shack….The list goes on. But there are actually many more trademarked names than you might think, and there’s a good chance you’ve used a lot of them on a daily basis. Think: Kleenex, Band-Aid, etc. Did you know the following food terms were trademarked?
1. 2. Jell-O – Nowadays, this jiggly dessert is a household name, but the term is actually trademarked by Kraft Foods. The real name for this dessert is gelatin—which you’ve probably heard before—but most people refer to it by its Kraft Foods name. In 2015, Kraft Foods won a trademark battle against Mumbai-based brand “Mello Jello.”
3. Ronald McDonald – Restaurants can trademark their spokespeople (or spokes-characters) too. Ronald McDonald, the popular clown who is the face of McDonald’s restaurants, was invented in 1963 and was filed for copyright in 1967. However, the original Ronald McDonald looked nothing like today’s Ronald.
4. TV Dinner – Popular food phrases can also be coined, even if they seem generic. The term “TV dinner” was actually trademarked by C.A. Swanson & Sons in 1954 under the name “TV Brand Frozen Dinner.” Although the phrase now goes by “TV Dinner,” it’s still synonymous with the original, making it protected under the Swanson trademark.
The bottom line: Trademarks are extremely important. Whether you’re registering a trademark within your state, like Gregory’s, or registering it nationwide, like Taco John’s, it’s imperative that you trademark everything within your brand from the get go in order to avoid problems in the long run.