You can and should register a Federal trademark for your restaurant or food truck—so long as it meets the requirements for registration.
What are those requirements, and why should you register your restaurant or food truck name as a trademark?
Is Your Restaurant or Food Truck Name Eligible for Federal Trademark Registration?
The purpose of Federal trademark registration is to ensure that consumers across the United States are not confused as to what they are buying and from whom.
When a consumer buys a can of Coke with that distinctive red and white, cursive script packaging, they can be assured that it was canned by The Coca Cola Company of Atlanta, Georgia and not by some guy filling cans with brown liquid in his garage.
They are assured of that by the “R-in-a-circle” trademark symbol printed on the can. This symbol is available for use only by those who have registered a Federal trademark.
Thus, the consumer understands instinctively, upon spotting that symbol, that the can of Coke is safe to drink and is what it claims to be.
This is a different purpose than that of copyright or patent law, which protects the artistic work or design of an author, artist, or inventor.
Trademark protection exists to protect third parties—not you.
This does not mean that trademark registration does not offer your business and brand enormous protection.
However, understanding that consumers are the focus of the registration process is crucial for understanding what names and logos can be registered and why trademark registration applications often fail—especially those filed without the assistance of a trademark attorney.
Trademark Registration Eligibility Requirements
A restaurant name or logo is eligible for Federal trademark registration under the following circumstances:
1. The name is in use in interstate commerce.
A trademark can only be registered at the Federal level if it is used in relation to a product or service marketed in interstate commerce. Otherwise, if the product or service is marketed only within a state, it is within the jurisdiction of that state’s government only.
If customers for your restaurant travel across a state line, even occasionally, to dine in your establishment, that is interstate commerce.
If your restaurant has a website advertising its services, viewable by potential customers over a state line, you can likely meet this eligibility requirement.
If there is any question as to whether you can produce receipts from out-of-state diners should the USPTO Examiner assigned to your file question your Federal trademark eligibility on this basis, there is always the possibility of producing brand merchandise or swag which can be sold through a web-based store with the usual “shopping cart” feature.
For an example, see the website, here, of Yesterdog, the best hotdog joint in the State of Michigan and one of this post’s author’s former employers (a long, long, long time ago).
It is beyond dispute that a Yesterdog fan in, say, Tempe, Arizona, could purchase a t-shirt from this website.
That’s interstate commerce in action.
2. The name is unique enough to specifically identify you as its owner.
A proposed trademark cannot be generic, and it cannot be merely descriptive of the product or service being sold.
For example, “Hammers” is a generic term describing—well, hammers. It cannot be registered as a trademark.
Likewise, “The Detroit Hammer Company” simply describes what is being sold and the geographic location of the company. It is merely descriptive and will be refused by the USPTO on that basis.
The strongest trademark is what is called a “fanciful” term.
This is an invented word that has no meaning in the English language outside of its use as your trademark. “Google” is an obvious example.
Simply changing an English language word or term to a foreign language equivalent won’t help you, by the way: the so-called Doctrine of Foreign Equivalents will prevent that term from being registered as a trademark.
On the other hand, if you’ve been in business for a long time, your merely descriptive restaurant name (“John’s Restaurant,” etc.) may have acquired distinctiveness in the minds of consumers.
You will want to discuss your potential registration with a knowledgeable trademark attorney rather than dismissing the possibility off-hand.
3. Your restaurant or food truck name is not likely to confuse consumers.
A unique trademark does not simply rise above the level of the generic or descriptive. It also is unlike anyone else’s registered trademark.
Remember the McDonald’s/McDowell’s restaurant joke from Eddie Murphy’s Coming to America? (“They have the golden arches … I have the golden arcs!”)
That is a good (and funny) example of the issue of whether or not a proposed trademark will encounter a “likelihood of confusion” refusal from the USPTO.
A trademark need not be identical to be found likely to confuse at least one or two consumers. If it’s in the ballpark, it’s a problem.
You may be aware of a few problem competitors. You may have run a Google search or a search of TESS (the USPTO trademark database) for exact matches.
A good trademark attorney will, prior to filing the actual trademark registration application, run a full clearance search not only of TESS and the trademark databases of all 50 states but also domain name registrations, business entity registrations, internet search and social media results, and more.
A pre-filing clearance search will locate those not-quite-exact competitors in the restaurant industry whose own registered marks may impede your trademark application.
If any of those search results are too highly problematic for your level of risk averseness, you will then have the option either not to proceed with the registration or to re-brand with a stronger mark.
It is worth noting that 2 businesses may register the same trademark if they are not likely to confuse consumers because the products or services are totally different.
You may operate a restaurant called, say, Cornucopia. A trademark registration for a tool and dye manufacturer also named Cornucopia would not be a barrier to your restaurant trademark registration.
4. You used the name before anyone else did.
With regard to trademark registration, the United States is a “first to use” jurisdiction rather than a “first to file” jurisdiction.
That means that the right to use a trademark belongs legally to the individual or entity who was the first to use it in interstate commerce—not merely the one who first filed a trademark registration application.
If your restaurant or food truck has been in business since 1945 and another restaurant registered a trademark for your same name just last year with a first use date of 2019, it does not mean that you’re out of luck.
It does mean that you need to discuss your options with a trademark attorney.
You do have options. Litigation may be required.
Why Register a Restaurant or Food Truck Name as a Trademark?
But why should you register your restaurant or food truck name (or logo) as a Federal trademark?
There are a variety of reasons. We discuss them in detail in our Benefits of Federal Trademark Registration section here.
From the standpoint of the restaurant and food truck business, however, you’ll first want to register your trademark to ensure that your customers can easily identify your food service business in a very crowded and competitive field.
A Federal trademark registration ensures that your name and your logo ring clearly to customers, leading them directly to your door and not someone else’s.
You also want to be able to sue for infringement in Federal Court.
If you have not registered your trademark, you do not have standing to file an infringement lawsuit.
Planning on franchising? Or operating a multi-state mobile food truck business?
Federal trademark registration gives you the exclusive right to use your restaurant name or logo across all 50 states.
With trademark registration, your exclusive right to use that name or logo is publicly viewable in the USPTO database.
You also have the right to use that R-in-a-circle symbol with your name and logo on signage, on menus, and in advertisements.
Further, if you do sell your business or transfer ownership, your affirmed and public trademark registration ownership will increase the value of the enterprise to prospective buyers.
Expanding your successful chain of burrito joints overseas?
US trademark registration allows you to register your trademark in foreign countries later on down the line.
Restaurant and Food Truck Trademark Registration: The Bottom Line
The bottom line is that restaurants and food trucks will benefit from Federal trademark registration just as any other business would.
Restaurants in particular are just as subject—if not more—to the threat of knock-offs, copycat businesses, and unscrupulous competition as any other business is.
Keep in mind the ongoing “Original Ray’s” controversy in New York City, long the subject of both public debate and stand-up comedy.
It is vital that you protect your brand if you want to stay in business—and even more vital if you want to grow, expand, or sell your business.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting enterprises in every industry with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.