Trademark My Restaurant Name

RESTAURANT TRADEMARKThe name of your restaurant is perhaps one of the most important decisions to make when opening a restaurant. After all, it is the name of your restaurant that will differentiate you from all the other restaurants in your area. Although it is important for any business to look at trademarking their name early. It is particularly important that a restaurant owner ensures that their name is even available prior to launching.  This will save the headache of a name change post opening.

I Just Have One Location Locally

Just because you have one restaurant location or are located in one city does not mean you are not eligible for a US trademark.

To qualify for a US trademark you must show your restaurant is in interstate commerce (commerce across state lines). Before you stop reading, and say “I told you I only had one location, how can it be across state lines?”, please consider that even restaurants with one location can show interstate commerce.

Previous trademark cases have established that one restaurant location can suffice as interstate commerce because serving interstate travelers is “use in commerce”. See Larry Harmon Pictures Corp. v. Williams Restaurant Corp., 929 F.2d 662, 18 USPQ2d 1292 (Fed. Cir. 1991). Thus, even if you have a local establishment, you may qualify for a federal trademark.

  • Restaurants with one location can qualify for U.S. trademark registration

I Don’t Need a Trademark, I Have Common Law Rights

Common law rights are a good start, but may not offer the protection you need. Common law rights attach to a trademark once the trademark is associated with any goods/services in a geographical area. The U.S. is a first in time, first in right country. A restaurant that does not register its trademark can still have first priority to the name in the geographic area in which it sells its services. If you are indeed the first to use the name within your geographic area and no other federal registration exists for the name, then you have acquired common law rights.

Common law rights may protect one location, however, if someone from the time you opened acquired a federal registration for your name, you could be prevented from expanding your business. For example, the entity that acquired the registration has now obtained nationwide rights to the name, except where you have common law rights. However, should you decide to expand outside of your common law area they can prevent such an expansion because they own the name nationwide, which includes the areas outside your common law geographic area. The simplest way to protect your rights is to acquire nationwide rights as early as you can by filing a federal registration.

  • Trademark protection across the U.S. prevents someone from telling you to change your name
  • U.S. trademark registration prevents other restaurants from naming their restaurant something that will cause confusion among customers
  • U.S. trademark registration allows you to expand your business outside of your local area

We Sell Food Products Too

Food products with your restaurant’s name, such as hot sauce, barbecue sauce, salad dressings, or any other food item you sell will have to be registered separately. Specifically, the trademark will need to be filed in a separate international class. The US Trademark Office categorizes all goods and services into international classes (IC), for example, restaurant and hotels are IC 43, distilled spirits are IC 33, and electronics are IC 9. Food products are in IC 30. Therefore, you’ll want one registration for your restaurant (IC 43) and one for the food products you sell (IC 30).

  • Just because you have a trademark for your restaurant does not necessarily protect your food products
  • U.S. trademark registration helps protect your goods for nationwide shipments

Trademark the Restaurant Name Before Opening

The United States is one of the countries that allows you to protect your restaurant’s trademark prior to even using it. One of the main benefits of filing an intent to use trademark application is it is an opportunity for a person or business to essentially reserve a name prior to starting use of the trademark. You can learn more about intent to use applications in our intent to use trademark application frequently asked question. If you failed to file before opening don’t fret. You can always apply based on your current use. In addition, you will be able to list your date of first use in the application (even if 40 years ago).

  • Filing for registration prior to opening prevents having to change your name
  • You don’t want to infringe on another restaurant with a registered trademark
  • If you didn’t trademark the name before opening don’t worry, it’s never too late

If You Have A Unique Design Protect It

Logos can mean a lot to a business. When filing for trademark protection you should consider also filing your logo. Good examples of restaurant logos would be McDonald’s golden arches, Arby’s hat, Hooter’s Owl, Chipotle’s pepper,etc. Filing a logo protects any design aspects you have in relation to that design. In other words, if I launch a fast-food restaurant that features a large bowler hat or “cowboy hat”, I should expect a call from Arby’s asking to please remove it. In a similar scenario, you would also be protected for design when obtaining the rights to a logo. While protecting the name is a great start, you may also consider filing for the logo if you have any protectable design elements.

  • Your logo should also be filed when you have a protectable design