Some operators excel at trademarking. We’ve all opened up a menu only to find a deluge of “®” marks peppered across the page. Most concept creators, however, fail to realize the benefits of trademarking.
A “trademark” is any word, name, symbol or device (or combination) used to identify your goods from those made or sold by others. Both the name Nike® and the “swoosh” design associated with it are registered trademarks.
A trademark is “intellectual property” and is an asset that can be bought, sold, or licensed. Marks can be identified with “TM” without being registered with the U.S. Patent and Trademark Office (and are protected by “common law,”) but the greatest protection comes through registration. Only registered marks may bear the ® symbol and are afforded nationwide protection.
Benefits for Operators
There are a few important reasons to register beverage items and no real reasons not to. Generally, Federal registration provides notice to others of your ownership of the mark and allows the owner to invoke the jurisdiction of federal courts to protect its interests. Registration is a means of protecting your unique item names from use by others. Another practical reason is that intellectual property is still property and it becomes an asset. Trademarks build goodwill and that often adds value. Many concept creators keep their intellectual property as a separate legal entity to avoid confusion about ownership (especially in multi-unit operations, or when private equity partners are involved). Remember, however, that when promoting your items, you must use the ® with your mark in print. Failure to do so could result in a waiver of your trademark rights.
You need not wait until the item is on the menu before registering the name. Since there are many ways in which the USPTO could determine that a new mark is “deceptively similar” to an existing mark, operators often seek registration under an “intent to use” application to see whether registration is available before incurring the rollout costs of a new item. That way, if the application is rejected, the operator can go back to the drawing board without losing goodwill and confusing customers.
Whether you intend to run a single unit or grow your concept into the dozens, your plans should include trademark protection for unique beverage items (and the business’ trade name, too!), both to add value and to protect yourself from infringing use by competitors.