Intellectual Property Primer for Restaurants and Bars

So you have managed to open your doors, keep them open and attract customers with your cuisine, cocktails and atmosphere.  Congratulations, the restaurant and bar industry is not an easy one.  While you are keeping customers full, keeping critics happy and keeping the lights on, do not forget to keep track of your Intellectual Property.  If you do not think your restaurant or bar has IP, think again.

There are various kinds of intellectual property that generally apply to restaurants:

  1. Trademark or Service Mark.  The restaurant name, slogan, menu items and distinctive designs/logos should all be registered with the United States Patent and Trademark Office (USPTO).  Once you have registered your marks, be sure to monitor and enforce them, as necessary.  As an Austin trademark attorney, I was reminded today about how trademark disputes often arise in the restaurant context, as highlighted in the Austin Business Journal.  Also, don’t forget about the subset of trade dress protection, which can apply to the total image and appearance of a restaurant, including the floor plan, decor, color combinations, and even particular sales techniques featured at a location
  2. Trade Secret.  Do you have a secret sauce?  If so, you must keep it secret with certain measures in order to maintain its value and enforce your rights in the event of trade secret misappropriation by an employee, for example.  You should have the necessary written non-disclosure, confidentiality and non-use agreements with employees, contractors and others.  You should also maintain the secrecy of the item by limiting access, keeping it under lock and key and other measures.
  3. Copyright.  What original works of authorship have you created?  The menu, recipes and/or certain artwork may be subject to copyright protection.  As a side note, you want to be aware of what you may not do so as to avoid copyright infringement liability, such as public playing of unlicensed music.
  4. Patent.  Is there an invention related to your restaurant?  If not a utility patent, could a design patent apply?  It is worth considering and perhaps conduct an IP Audit to understand what patent rights you may own.  Equally important, it is important to mindful of what risk of liability you may face as a restaurant depending upon what technology or other items you use, being ever mindful of patent trolls.

Equally important, if you think because you secured a trademark registration for your restaurant or you have implemented the proper processes to protect your trade secrets that you are in the clear, think again!  You need to be mindful of what your competitors, existing and prospective alike, are doing that may adversely impact your IP rights.

Ultimately, Intellectual Property rights are as applicable to restaurants as any other business.  So, while you keep the food tasty, keep the drinks flowing and keep your particular ambiance, remember to keep in mind your Intellectual Property rights.


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