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Intellectual property rights in the restaurant industry

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our San Francisco law firm, we advise California clients in the restaurant industry like owners and chefs about how to protect their valuable intellectual property. After all, food professionals invest significant creativity as well as money into their livelihoods. 

After all, if a competitor can just copy a restaurant's key concepts and products, the time, effort and money put into the original entrepreneurial effort could be diminished or lost. But the variety of intellectual property tools that might stick to protect food- and restaurant-related creative elements are complex, and the use of some IP applications represents relatively new ideas.


Trademarks and food creations 

Trademarks offer legal protections to brands and logos that distinguish the source of products and services. In an article, Modern Restaurant Management describes New York chef Dominique Ansell's successful trademarking of the name "Cronut" that identifies his popular pastry invention that combine elements of donuts and croissants. 

In the trademark context, chefs and restaurant owners should consider the names, logos and brands not only of food creations, but also of restaurant names. The Modern Restaurant Management article suggests that trademark may even protect food design in some contexts. 

Trade secrets, recipes and prep methods 

Trade secrets consist of information internal to a business that gives it value because competitors do not know about them such as (to quote California law) "a formula, pattern, compilation, program, device, method, technique, or process ..." In the restaurant industry, trade secrets may include recipes and food preparation methods.

The key to keeping these valuable business elements confidential is to explain that expectation to every employee, contractor and vendor who might have access. A lawyer can assist with drafting nondisclosure or confidentiality agreements for new employees and other parties exposed to secrets. Then, when an employee leaves, the business can have a formal exiting process to reset expectations that the contractual promise of secrecy will continue after he or she has left the job. 

Copyrights for creative works 

Copyright may be available for items of original authorship expressed in tangible mediums like menus and advertisements. 

In a New York Times opinion piece, one legal professional expressed his opinion that creative food plating could potentially be protected in copyright as sculpture. (He also explained the potential for protection of food plating through trade dress if the plating's distinctiveness either identifies the source of the product or takes on secondary meaning over time that identifies the source, depending on whether plating is considered packaging or product design.) 

There may be even more elements of a restaurant that are protectible. For example, what about unique tableside food preparation presentation, restaurant-space design, color schemes, tableware or place-setting design, and other creative elements?

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