Restaurant Law Blog

Saturday, December 1, 2012

Who Owns Your Restaurant’s Name?

Consider this – you have developed a clear business plan, spent countless hours conceptualizing every aspect of the restaurant you want to open, and have invested hundreds of thousands of dollars to get up and running. You select a name which is near and dear to your heart. You prepare menus, business cards and signage, all of which look amazing. Your website is generating lots of traffic and you have been written up in both the NY Times and Page Six. You then receive a cease and desist letter advising you that you have stolen another restaurant’s name. You call your attorney only to discover that the other restaurant trademarked their name years ago, and that you have no choice but to start all over.

Typically, my clients do not consider whether they own their restaurant’s name; or, they believe that the the registration of their company in New York, or the filing of their Certificate of Assumed Name, somehow protects them. Merely incorporating your company name in New York does not give trademark protection or even the legal right to use your company name. Federal trademark laws may have already granted those rights to a third party. Likewise, in New York all businesses which operate under a name different from their company name are required to file a Certificate of Assumed Name (a “d/b/a”) which, at its heart is designed to protect the public – not you. For example, imagine that you slip and fall on ice in-front of one of the countless Ray’s Pizzas throughout the city. Since most every “Ray’s Pizza” is independently owned, without a public filing requirement, you would not know who was responsible for causing your injuries. In other words, neither the filing of your company or its d/b/a with the State protect you from having your trade name infringed on.

To be protected, you must file for a registered trademark, which can include any word, symbol, design, slogan, or combination, that identifies your business. If you are unsure whether your company name is protected or needs protection, call our office and set up an appointment.

 


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