OpenAI’s trademark GPT raises many important questions of trademark law. Read more about them here.
Restaurants and trademarks: why, how, and what
There are nearly one million restaurants (pre-pandemic figure) in the EU, with France and Italy leading the way. In many cities, they are in every corner. The food and beverages industry generates almost 500 Billion EUR in annual turnover and is a significant part of the economy of every country. Some restaurants are known only to locals and have generic non-distinctive names such as Cafe Milan or Bistro Paris. Most will never achieve more than local fame, but some become world-famous either as a chain (e.g. McDonald’s) or as a single restaurant (e.g. El Bulli, Noma, or Etxebarri). Furthermore, restaurant brands can be very valuable, even if the restaurant is not world-famous. Many small and medium size restaurants focus heavily on their operations but unfortunately forget to protect their brand. Think about branding from the start It is important to think very early on about what kind of name and branding to have. Naming your restaurant something generic will make it very hard to create a strong reputation and awareness that goes beyond the immediate neighborhood. For example, a simple Google Maps search reveals that Barcelona is full of cafes and restaurants that are called “Roma” or “Rome”. If you want your restaurant to be known beyond the locals, it is important to choose a name that stands out. It is difficult if even in the same city there are five other restaurants that are called the same as you. “Noma”, many times chosen to be the best restaurant in the world, is a good example of a distinctive name. Noma is also a registered trademark in the EU. If you create a truly great restaurant that has a generic name (e.g. Pizzeria Napoli) you will probably not be able to prevent others from using the same or similar name. Also, it is more difficult to convince customers that even though the name is common and average, the food and service are not. Using a distinctive name will help you to establish a restaurant that is known beyond your own locality or even create a chain of many restaurants. It is also important to register the name of the restaurant as a trademark. This will be particularly important if you don’t want others to use a similar name for their restaurant or are planning to have more than one restaurant with the same name. Once the trademark is registered, it is also possible to license it for others to use. Licensing the brand is the cornerstone of franchising. In most cases, the individual dishes served at the restaurant are not branded but differentiated from each other with generic names. Common menu items (dishes) in pizzerias include “Margherita”, “Quattro Stagioni” and “Diavola”. “Steak frites” is a common dish in bistros around the world. To take branding to the next level, it is possible to create menu items that are branded, such as “Big Mac” for hamburgers. Using branded menu items is often a great way of making the dish seem more unique, memorable and desirable. Heart Attack Grill, the famous Las Vegas burger joint that’s known for its comically large burgers, has named them Single Bypass Burger, Double Bypass Burger, Triple Bypass Burger, etc. going all the way to Octuple Bypass Burger. Many of these names have been registered as trademarks. Burger King, Starbucks, and many other food and beverage service providers also brand their menu items. Bellini, a famous cocktail originally developed in Harry’s Bar in Venice, could’ve been a trademark. The name is distinctive as it does not describe the beverage that’s made of Prosecco and peach purée. Instead, it is a name that everyone can use. Creating branded menu items can be a double-edged sword. On one hand, it allows you to create additional brands for your business that can be very valuable and can be leveraged in many ways, for example in bringing products to retail. On the other hand, there is a risk that somebody has protected a similar brand name for food products and that your menu item name infringes prior trademarks. The good thing about “Pizza Margherita” on the menu (apart from its taste) is that nobody has exclusive rights to the name, so you won’t be infringing anybody’s rights by having “Pizza Margherita” on the menu. How to protect your restaurant’s brand? When you file a trademark application, you need to provide a list of goods and services that your trademark will cover. Restaurants provide both goods and services. Restaurant services belong to class 43 in the Nice Classification. For example, McDonald’s could (and has) protected their trademark in class 43 for “restaurant services”. Class 43 is typically the most important class for restaurants. If you brand your menu items, you should also protect them as trademarks in relevant food categories. For example, steaks belong to class 29 in the Nice Classification and pasta to class 30. It is also becoming a trend that successful restaurants use their brand to make ready-made meals and other food products to be sold in retail outlets such as supermarkets. If you are thinking of doing that, you should protect your trademark in the relevant food categories. For example, a pizzeria could sell their own pizzas or pizza sauce in supermarkets. A steakhouse could sell its signature steaks and seasoning blend. If you plan to do this, you need to register your trademark for food products as well, not just for restaurant services. Another trend is that many restaurants import and sell products. For example, a Greek restaurant or cafe located in Germany might import and sell Greek olives, cheeses and other products. This is a retail service. Import and retail services belong to class 35 in the Nice Classification. Another possible brand extension for restaurants is to offer cooking courses and workshops. Brand extensions beyond food are also almost limitless for famous restaurants. For a long time, the (then) most famous and best restaurant El Bulli financed a lot of their operations by selling cooking books of the recipes and techniques used in the restaurant. Equally, a restaurant could have its own branded cutlery, tableware, barware, kitchen aprons, cooking books, and many other products. What to protect as trademarks The name of the restaurant. This is usually the most important trademark to protect. It should be protected at least with respect to restaurant services, but in some cases for import services, retail services, and food products. As with any trademark, the name needs to be distinctive in order to be protectable. Cafe Milan or Greek Tavern are not distinctive, Noma and El Bulli are. Menu items. If you have branded menu items (such as Big Mac, Whopper, or Frappuccino), they should be protected as trademarks. These menu items are food products, not restaurant services. They should be protected in the relevant categories. Slogans. If you have a slogan, that might also be registrable. The challenge with slogans is that they are often too descriptive to be protectable as trademarks. Other signs and symbols. In most cases, these are for larger restaurants and restaurant chains. For example, McDonald’s have their golden arches and “I’m loving it” jingle. Apple (though not a restaurant) has protected the “get-up” of their store as a trademark. A restaurant could do the same. A restaurant could also have very distinctive uniforms for their staff. Thatose could in some cases be protected as a trademark. For example, the Heart Attack Grill dresses their waiters as doctors and nurses. “Normal” waiter’s uniforms would not be distinctive for restaurants, but nurse’s uniforms could well be. As with anything, products and services can be distinguished in many different ways. The possibilities are endless, and restaurants should think from the beginning what are the different and non-traditional ways they could differentiate themselves from the competition are. Final remarks Restaurants need trademarks just asas all other businesses do. Competition is fierce, and often one block in a big city can even have even ten restaurants. They all need to be able to distinguish themselves from competitors. It is a particular characteristic of the restaurant industry that restaurants are often small and local establishments and that they use non-distinctive names. Maybe because of this many restaurants do not focus enough on branding. However, having a strong brand is equally important for restaurants as it is for other businesses. A strong and distinctive brand is a competitive advantage that increases customer loyalty, enables charging higher prices, and makes expansion possible. It also makes it easier to have a restaurant that is famous beyond its immediate location. Unlike generic names like Cafe Milan, a distinctive restaurant name can be legally protected. It is, simply put, much more valuable.