4 Tips to Protect Your Restaurant’s Trade Mark

Angus

• 10 August 2021
• 12 August 2021
• 5 min read

Creating and coming up with a unique idea or concept for a restaurant has become exceedingly difficult in today’s highly competitive business industry. Protecting your distinctive and original ideas should be a top consideration for every restaurant. As a result, it is critical to have a full understanding of your intellectual property rights and how they relate to the many components of a restaurant’s brand. Knowing your intellectual property rights will help you protect your restaurant’s brand from rivals. Additionally, it will help you enhance its overall worth. If you are a restaurant owner, this article will explore some of the key considerations to think about so you can protect your restaurant’s trade mark.

1. Create a Unique Trade Mark

You must ensure that no other business has previously registered the name as a trade mark before you can register it. To do so, go to the IP Australia databases. You should look for a trade mark that is similar to yours in the categories of products and services you wish to register.

The first business to use the sign (whether registered or not) has trade mark protection under Australian law. However, they only have protection in the geographic region where it operates.

This implies that if a company is located in a different location, they can use it. Your application will be denied if the name, in an exact or similar form, is already registered as a trade mark in the same category of goods and services.

2. Be Aware of Unregistered Intellectual Property Rights

It is critical to recognise and comprehend that a few IP rights exist without the need to register them. Copyright ownership emerges immediately when you create a novel and inventive dramatic, artistic, or literary work. Copyright protection in the restaurant industry extends to the restaurant’s logo and may even extend to the restaurant’s food and beverage menu. Furthermore, trade secrets may provide safeguarding of food and beverage recipes, giving the restaurant owner a competitive and economic edge.

3. Take Legal Action If Needed

Intellectual property infringement of a restaurant’s name can take several forms, including trade mark infringement, copyright infringement, and so on. If you suspect a rival is stealing your ideas or infringing on your intellectual property rights, whether intentionally or unintentionally, you should obtain legal counsel to determine the scope and type of the infringement. In most situations, delivering a pre-action letter is sufficient to resolve the matter. Nonetheless, legal action may be necessary at times to preserve your restaurant’s brand and organisation.

Taking legal action is a strong course to take. Therefore, you should obtain legal advice before filing claims in relation to an alleged breach of your intellectual property.

4. Know What Happens After You File a Trade Mark Application

Generally, the evaluation of trade mark applications occurs four months after you file them. If an applicant has already spent considerable time or money on the brand, the examination can be completed in as little as six weeks.

The goal of the assessment is to see if the trade mark application meets all of the legal criteria. The examiner will also check whether the trade mark:

• has the required level of distinctiveness; and
• clashes with any existing marks on the Register.

An unfavourable examination report will be issued if the examiner feels a trade mark lacks uniqueness or is in conflict with another mark already on the Register.

Applicants have 15 months from the date on which an examination report is issued to rectify any concerns that are keeping them from being accepted. Without giving justification, you can obtain an extra six months by paying the appropriate fees.

You may be able to overturn an unfavourable examiner’s conclusion by:

• a legal argument;
• modification of the application; or
• the presentation of evidence in favour of registrability.

It is typically preferable to address the examiner’s concerns as soon as feasible to place the application in the best possible position for acceptance without having to seek any extensions of time. The Australian Trade Marks Journal publishes a trade mark application when it has been approved.

Key Takeaways 

Before deciding to protect your restaurant’s trade mark, you should consider:

1. what happens after you file a trade mark application;
2. what your appetite is for legal action, should the need arise;
3. whether there are an unregistering trade mark or intellectual property rights; and
4. ensuring your trade mark is unique.

If you have any questions about how to protect your restaurant’s trade mark contact our trade mark lawyers on 1300 657 423 or fill out the form on this page.

Frequently Asked Questions