The Tip Out: Protect Your Brand & Identity- Restaurant Intellectual Property

By Noah Roth

May 7, 2014

You finally did it! You perfected your technique for preparing the most scrumptious ribs, decided on the perfect name, designed a unique logo and painstakingly prepared a menu including detailed descriptions of each dish for your new restaurant.

Your restaurant has received multiple accolades from food critics and has been featured in numerous publications.

You have become preoccupied with trying to stay ahead of the competition and wish you could protect the key distinguishing characteristics of your restaurant, but what can you do?  You remember a frequent patron who is an attorney specializing in intellectual property (IP) and ask him to enjoy a dinner with you. During the discussion you share your concerns and ask what can be done?

He starts by outlining some of the different types of intellectual property including:

  • A utility patent covering the process of making something or the finished product (e.g., the ribs)
  • A design patent covering the aesthetic appeal of an item (e.g., design, color and texture of a menu)
  • A trademark covering a name or logo associated with an item or business (e.g., restaurant name and logo)
  • A copyright protecting both the written word and artistic character (e.g., the menu descriptions and visual appeal not covered in design patents) and identifying and protecting trade secrets (e.g., a specific recipe or method).

You decide to retain his services and schedule a meeting to go over the various IP strategies to protect the unique characteristics of your restaurant.  Based on the information provided and federal intellectual property law as governed by the United States Patent and Trademark Office and Library of Congress he lays out the following strategy.

In regard to your rib recipe you need to make a critical decision.  Are you willing to disclose your method for a limited amount of protection (20 years from filling a utility patent) or do you prefer to keep the method a trade secret?  You need to think about enforceability.  That is, if someone uses your recipe how will you know?  If your ability to identify use of your recipe is limited, a trade secret may be better.  For a trade secret to be enforceable it needs to be identified, steps need to be taken to keep it a secret and disclosure of the secret needs to be limited.

More straightforward are the name and logo that can be trademarked and a copyright covering the detailed descriptions within the menu.  Additionally, using a design patent or copyright you can seek to protect the aesthetic appeal to physical items within the restaurant (e.g., the menu).

This introduction is written to touch on a few aspects of intellectual property law and the ability of restaurants to use intellectual property law to protect their brand and identity.  It was written by Noah N. Roth principal attorney at The Law Office of Noah M. Roth (Your Brand is Your Identity) and can be reached at 678-310-NOAH (6624) or for a consulatation.  Special rates will be provided to NYC Hospitality Alliance members.

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