[#11] I Thought…

I thought… “I own a restaurant. So I only need to bothered about Trademark Rights”

When dining out, think of what attracts you to a restaurant, besides parking facilities! Is it the catchy name, the interior decoration (furniture, display items on the wall, etc), menu card with coined menu items, uniquely designed cutlery and plates, the uniform of the restaurant staff? These creative elements in the restaurant business can be protected and thereby kept away from competitors’ reach:

1. Name of Restaurant. Often the trade name of the restaurant (i.e. the name on the signage, menu card and so on) may not be the same as the incorporated name of the restaurant. For example, McDonald’s® may be the trade name of the restaurant but the owner of the fast-food chain in Malaysia is Golden Arches Restaurants Sdn Bhd. Therefore, unless the trade name is registered as a Trademark in the country, others may adopt identical or similar names.

2. The interior and staff uniform. The general ambiance of the interior of a restaurant is difficult to protect, unless the other party copies all elements of the interior. However, if the owner designs or instructs a manufacturer to design an exclusive interior item (tables, chairs, counters, cutlery etc), the Industrial Design rights of the articles (the shape) can be owned by the restaurant. Once registered, no one can reproduce the same articles, even the original manufacturer of the articles. Even photographs, artistic paintings and the uniform of the staff can be protected by copyright and the rights can be assigned to the restaurant. No one can reproduce the same photographs, paintings or uniform.

3. Menu Card and Menu Items. The design of the menu card with all its artistic work, if original, would be automatically protected under Copyright law. Of course, if an external designer/artist was engaged to design the card, then the restaurant should obtain an assignment of the copyright if there has been no contract of commissioning the work.

4. Recipe. Most restaurants would keep the recipe for their signature dishes as trade secrets. However, calling the recipe as a “trade secret” is insufficient if the management does not take appropriate management steps to maintain the recipes as trade secrets – just like how Coca-Cola® or Kentucky Fried Chicken® keep their recipes as trade secrets.

5. Shape of food items. Certain food items, like biscuits, lollipops, cakes, ice-cream, fruit carvings and such can be protected by Industrial Design Laws. If the restaurant owner produces naan bread or kuih lapis (steamed layer cake) in unique shapes then the shape can be protected by Industrial Design.

The business of running a restaurant can involve a lot of creativity. Unless the owner takes steps to protect the creative elements in the business, he has no one to blame but himself if his ideas are copied. Of course, copying is done once the business is successful, as success generally begets imitations. But action to protect the creative elements must be taken much earlier in the business to stop the copycats even before they begin!

Note: The trademarks identified in the article belong to their respective owners. KASS does not claim any proprietary rights whatsoever; they are used merely for educational purposes.

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