A Menu of Intellectual Property Strategies–Restaurant Management

I co-authored an article with Jess Collen, partner in Collen IP’s Restaurant and Food Services Group, on ways restaurants can use intellectual property laws to further their business interests. This article first appeared in the September 28, 2011 edition of rmgmtmagazine.com.

There’s nothing like using your creative spark to grow your restaurant’s business.

The problem, however, is that many restaurant operators often neglect their intellectual property and its legal power to develop their unique images and stave off competition. There are a plethora of intellectual property assets that are worthy of legal protection and restaurants can and should use them to strengthen the value of their brands.

1. Names: The Basic Ingredient

The starting point is the restaurant name. Whether registered or not, a name is a valuable asset that can have associated trademark rights.

In choosing an establishment name, it is always wise to consider a name that is distinctive. Single location, owner-operated restaurants often bear the name of their founder or chef. But to name a restaurant MICHAEL’S, for example, is to create something that would be virtually impossible to protect.

Instead, the best name is one that is arbitrary or fanciful. For a restaurant chain or a nationwide business, a strong trademark is virtually mandatory. A local restaurant should, at a minimum, conduct a comprehensive trademark search and avoid choosing a name similar to any known competitor.

2. Menus: So Many Choices

Instead of using generic descriptions like “mushroom cheeseburger” or “veal scaloppini”, restaurateurs can choose signature names for their dishes. These special names can then be protected as trademarks and build value for the owner.

In addition, a menu that is an original creation, combining photographs, illustrations, images, and unique descriptions of the dishes, is protectable under copyright law.

Copyright laws will protect your menu based solely on its originality and are proof of its origins in case another restaurant copies it.

3. Recipes: Cooking up Protection

Often recipes are protectable trade secrets. Owners should have non-disclosure and non-compete agreements with key employees such as chefs and managers to prevent the loss of these. Furthermore, if a recipe is sufficiently distinctive, it may be worthy of patent protection.

4. Back of House Intellectual Property

Methods of doing business are also patentable. Fast food operators, for example, have revolutionized the industry over the last several decades by creating food preparation assembly lines.

5. Take away items: The VIP of Brand Extension

Some restaurants also package and sell signature products such as microbrews, preserves, condiments, t-shirts, cooking aprons, and dishware.

Restaurant operators engaging in this kind of brand extension should consider seeking trademark protection in an expanded class of goods, particularly if their customers are not purely local.

6. Décor: Securing the Front of the House

As with all ideas and concepts, restaurant décor and layout can be protected provided they are distinctive. Checkered tablecloths and candles for an Italian-themed restaurant will not be protectable. Décor that contains multiple distinctive elements employed consistently may be. Franchises such as Fuddruckers have sued to protect their layouts, floor plans and decor. While some restaurants even post signs that no photography is permitted on premises, in a social media-driven world, this may be difficult to enforce.

7. Websites and Social Media: Connecting with Customers

Restaurant websites can be protected with copyright law, as can images, layouts, photographs and arrangements. Increasingly, however, restaurants are using social media to connect with customers. Social media sites should be branded similarly to restaurants’ websites for consistency and more powerful copyright claims.

At the same time, restaurants need to remember that traditional rules of advertising (including false advertising) and unfair competition apply in the social media context. Many restaurants have not operated in that promotional world in the past and so have difficulty understanding the rules that govern new media. Retaining your customer names and personally identifiable information raises legal issues, particularly where customer credit card information is retained on file, such as for take-out orders or in the case of corporate accounts. Websites need to have clear privacy policies.

It is also important to realize that with the increased use of contests, sweepstakes, promotions, and online coupons, restaurateurs must take care to comply with applicable laws or they put their brands in jeopardy.

Whether starting a new restaurant, opening a second location, or developing a franchise, restaurateurs should remember that intellectual property laws can be used to differentiate their brands and to protect their rights in field that is often crowded with imitators.

By Jess M. Collen and Kyle-Beth Hilfer, both attorneys in the Restaurant and Food Group of Collen IP, Ossining, New York.

Collen IP is a premier intellectual property law firm that handles transactional and litigation matters relating to trademarks, copyrights, patents, advertising, marketing, promotions, new media, privacy matters, and domain names.

The firm boasts a broad client base domestically and abroad, including multi-national luxury goods makers, entertainment industry leaders, and hospitality companies. CollenIP’s Restaurant and Food Group advises clients on advertising and marketing campaigns in social media and web 2.0 environments, while securing all possible intellectual property protection for its clients. For more information, visit online at www.collenip.com, follow us on Twitter at www.twitter.com/collenip or like us on Facebook.