Opening a new restaurant can be akin to descending into madness. On your restaurant launch list, there’s probably a million things to do, and registering a trademark for your business might not be at the top. After all, there are many other things to worry about, and chief among them will be working to get everything running smoothly, so the restaurant can begin generating revenue.
When it finally comes time to address the restaurant trademarks issue, though, don’t fret. You may have heard that the trademarking process can be a nightmare, and you’re likely already dealing with dozens of nightmares as it is. However, with the right information and help from a professional, registering your mark doesn’t have to be an impossible task.
Unregistered Trademarks and the Goodness of Others
Image via Flickr by opensourceway
First things first: No business is legally required to register a trademark. Simply using a mark establishes certain “common law” trademark rights, but these “common law” rights aren’t necessarily protected or upheld in court.
Some restaurant owners rely on what is essentially an honor system when it comes to handling unregistered trademarks. For example, a restaurant owner in California catches wind of a bar opening in Wisconsin that has a name bearing a close resemblance to his business. His solution might be to appeal to the common human decency of the other business owners and expect them to act fairly (after all, the California restaurant owner laid claim to that name first). In a perfect world, the owner of the Wisconsin bar would just change its name, no questions asked.
Unfortunately, we don’t live in that world, and those unwritten codes aren’t enforced or protected by law. That’s why registering a mark becomes so important, particularly if a restaurant owner has big plans for his or her business. As a restaurant grows and becomes successful, it’s ideal to have a recognizable trademarked name and logo that can’t be confused with a completely different (but similarly named) business down the line.
The Benefits of Registration
So, what happens when your restaurant’s trademark is registered? First, provided the mark actually is in use, the owner of the trademark has nationwide rights to that trademark. This means that he or she doesn’t have to clear the mark in different states or regions, giving these owners free rein to expand their businesses without a hitch.
Secondly, the trademark becomes visible in the United States Patent and Trademark Office (USPTO) database. This ensures that, in the future, others who may have the same or similar trademark idea will see the registered one and know it’s taken. Every trademark attorney uses this database to help clients clear their trademarks. Subsequently, the registered trademark affords a degree of uniqueness that can’t be infringed upon.
Finally, registering your restaurant’s trademark establishes a timeline of sorts that proves when the mark came into use. If any legal disputes regarding the mark surface later, the holder has solid proof that he or she is the senior user of the mark and well within his or her rights to continue using it.
Clearing a Restaurant Trademark
Image via Flickr by JD Hancock
Trademark attorneys typically offer a comprehensive trademark search service, which is invaluable when it comes to using a new mark. Most registered trademarks are stored in the USPTO, and trademark attorneys have access to common law trademark databases that contain marks not found in the USPTO. By performing a regional or national search, an attorney can easily tell restaurant owners if their mark already is taken or if the mark they’re planning on using is distinctive enough to stand out among consumers.
For example, an ice cream shop owner wants to name her store “Melt.” She performs a search through the USPTO to find that another person in a neighboring county has trademarked the name “Melted” for their candle store. The ice cream shop owner now has the opportunity to rethink her business’s name, potentially avoiding a lot of confusion and mix-ups (not to mention any potential legal battles) in the future.
The Value of Forward-Thinking
When clearing a trademark, it’s not uncommon for restaurant owners to limit their search to nearby establishments. That’s fine if the owners have no immediate plans to expand their businesses beyond their cities, counties, or states. Sometimes, restaurant owners resign themselves to coexisting with each other if they’re using similar trademarks, particularly if many miles separate the businesses.
Those who are certain they won’t wish to move their restaurant beyond certain borders may not need to widen their search. However, if there’s any chance of crossing those borders, it’s imperative to do a regional search at the very least.
Knowing the Application Types
When registering a trademark, there are two types of applications, the TEAS Plus and TEAS. The TEAS Plus costs $275 per class of goods or services and requires quite a bit of work. It involves:
- A lengthy application in which every field is mandatory
- A selection of goods and/or services from the Acceptable Identification of Goods and Services Manual
- Payment of all application fees
- Agreement to file all future communications through the TEAS service
- Agreement to receive any future communications from the USPTO by email
The regular TEAS form is less stringent in its requirements, although it costs $325. In either case, a trademark attorney can help sift through the legal implications of any information the forms require.
Protecting Your Restaurant’s Trademark
Once a trademark has been successfully registered, the only thing left to do is protect it. Sometimes it’s not enough to just use a mark and assume that no one else will want to move in on it. Whether it’s because their trademark search wasn’t thorough enough or if they simply choose to disregard the fact that the mark is registered, it’s possible that someone might still decide to use someone else’s trademark.
Trademark watch services exist to help restaurant owners keep tabs on their trademarks, or they could opt to do it themselves. In either case, users of a registered mark might consider confronting infringers either by sending a notice or filing for legal action.
So, when you finally move down your restaurant launch checklist to see that “registering a trademark” is the next obstacle to tackle, it’s natural to feel a bit panicked. Although there are hoops to jump through, you shouldn’t let the registration process keep you awake at night. The process may be lengthy, but it’s feasible with a little foresight and help from a professional trademark attorney.