WNA Blog

Tue 22 May 2018

Why Restaurants Should Trademark Too


In The News
Many restaurants are somewhat blasé about trademarking. Although they are as exposed to competition and litigation as any other industry, it’s surprisingly common for a business to invest large amounts in fitting out their restaurant, and very little on protecting that asset.

From food trucks to small cafes and nationwide chains, trademark protection can be the difference between the success or demise of a business.  There is a lot of goodwill and reputation built up with the publicity of a business, and the cost of rebranding due to a trademark conflict can be greater than legal costs alone.

Who’s In The Know?

Companies such as KFC, Crust Pizza, and Wagamama are all trademark protected. James Packer and Robert De Niro jointly ensured their venture “Nobu” was trademarked in 2006, before they even opened the doors.

While these are large national and international businesses, many restaurant chains don’t start out with such acclaim. The iconic Australian “Oporto” chain began as a small take away in Bondi, NSW, expanding later to become the well-known franchise of today. Even without immediate plans for expansion, it’s important to consider future possibilities, and set up legal protection from the start.

Conflicts Between Companies

In-N-Out Burger are a well-known burger chain in America, who keep their trademark in active use in Australia via a series of pop-up restaurants in Sydney and Melbourne.

In-N-Out have recently launched court proceedings against the Australian burger chain; Down N’ Out, claiming that the latter is involved in brand and product mimicry.  The case is yet to be heard, however given the similarity between brand and product, there is a significant risk of having to rebrand the Australian business.

In another example, Viacom, owner of Nickelodeon and SpongeBob SquarePants, took legal action against a restaurant called the “Krusty Krab”. Viacom claimed that naming a restaurant after their fictional creation was a violation of their trademark, which the court upheld.

The lesson here is for any food service business to be original in their name. Imitation and allusions to similar well-known brands will usually be brought down by companies with deeper pockets and better lawyers.

Protecting the Future of Food Service

Before even opening the doors for service, those in the food service industry should protect their business with an original name. As demonstrated by the In-N-Out example, it’s important to search names both nationally and internationally.

Steer away from alluding to well-known brands with an existing reputation, and create something unique. This is a sure way to avoid legal conflict, as well as having a name which is more easily trademarked and protected.

Ensure your name is trademarked separately to your logo, and check that your logo is as unique as the rest of your business.

With the assistance of a trademark expert, the cost of protecting your business investment can be as $149 +GST a year. With the rise of litigation, surely that’s an investment worth making.


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