Article

8 things no one tells you about protecting your brand's identity

Restaurant owners invest in developing a distinctive name, logo, color scheme, and marketing model but often miss eight crucial aspects of branding.

February 22, 2016

By John Blattner, Dickinson Wright PLLC

Most restaurant owners instinctively understand the importance of developing a strong brand identity for their business. They put a lot of time, energy, and money into coming up with a unique concept, cuisine, décor, and value proposition. They invest in developing a distinctive name, logo, color scheme, and marketing model. All these things are important but aren't enough. I've read dozens of articles, blogs, and websites that offer advice on all these aspects of branding and many more, but I regularly notice eight crucial aspects of branding that almost none of them tell you about.

1. Strong trademarks capture the power and value of brand Identity.
   A strong brand identity is, in one sense, invaluable. But it actually does have a dollars-and-cents value that can be exploited and that must be protected. So much of the value of your restaurant lies in things like name recognition, good will, customer loyalty, atmosphere, reputation for great service. How do we valuate and protect these intangible assets
   
   This brings us to the first thing almost no one tells you about branding: Trademarks are the primary means by which we can harness the power, and capture the value, of brand identity. The economic value of trademarks is especially important when the time comes to sell or expand your business. They are the vehicles by which the intangible values of brand identity are priced, transferred, licensed, or otherwise exploited. And if you have any thoughts of franchising your restaurant, a roster of strong and legally protected trademarks is a critical prerequisite.
    
2. What trademarks are — and what they aren't.
    For restaurants, any of the following can function — and be legally protected — as a trademark:
   -A name: "McDonald's," "Starbucks."
   -A logo, with or without words: the golden arches, the topless mermaid
   -A slogan: "You Deserve a Break Today."
   -Unique names of signature menu items: "Big Mac," "Frappuccino."
   
   Restaurant owners also need to be aware that some things can not function, or be protected, as trademarks. Business owners sometimes assure me that their name is "legally protected" because they have (a) registered it as a corporate name with the Secretary of State; (b) registered it as as an assumed name (or DBA) in the county clerk's office; or (c) registered it as a domain name for their web site. These things are important, but they aren't necessarily trademarks. Registering your corporate name is legal prerequisite to doing business, but by itself is merely the way your entity is identified for purposes of paying taxes and signing contracts. A domain name is a valuable asset, but it is basically just the equivalent of an easy-to-remember street address or phone number. Corporate names and domain names can function as trademarks — but merely registering with the state, or with a domain name registrar, provides no legal protection.
    
3.  Make it sticky.
   Suppose you’re traveling and you feel like some Chinese food. You look through the yellow page and find:
   -The Most Delicious Chicken
   -Tasty Fish and Chicken
   -Ultimate Chicken Kitchen
   -Chicken 2 Go
   
   Then you see:
   
   All these names tell you what kind of restaurant it is. But which one catches your eye? Which are you likely to remember? Distinctive trademarks work better than merely descriptive ones, for both marketing and legal purposes.
    
4. Make sure someone else doesn’t already own it.
   It's a waste of resources to invest in a name, slogan, or logo that someone else already owns — and that they can make you stop using. Comprehensive clearance searching by an experienced professional is crucial. Searching on Google is useful, but it's not enough. And relying on your marketing agency is risky: it's not fair to expect them know the ins and outs of trademark law. The time to conduct a clearance search is as early in the branding process as possible, and it doesn't hurt to have two or three alternatives in mind, just in case.
    
5.  Registration is crucial.
   Registering your trademarks in the U.S. Trademark Office is the best way to protect against "brand identity theft." It gives you nationwide rights in your mark, makes it easier to stop copycats, and helps dissuade other businesses from adopting trademarks similar to yours. The process is simple and inexpensive. Think of it as cheap insurance for a valuable asset. 
    
6.  Use it properly.
   Make sure that you — and everyone else in your business — uses your trademarks consistently and correctly: The same spelling, the same logo in the same fonts and colors, every time, everywhere. This becomes increasingly important as your business expands.
    
7. Monitor and enforce.
   Don’t let your brand identity be used to drive business to your competitor! Keep an eye out for potentially infringing names, logos, or other marks — and when you find them, pursue them vigorously. Often a letter from your attorney will be enough; sometimes more aggressive legal action will make sense. If you ignore infringers, you risk creating a situation in which potential customers connect your brand identity with someone else’s business.
    
8. Going international? Register early.
   Trademark protection is strictly a country-by-country proposition. A U.S. registration won't help you in China, or Europe, or even just across the border in Mexico or Canada. Moreover, in other countries the first party to file for a registration gets trademark rights, even if it isn't using the mark. The moment you begin seriously contemplating expanding into a foreign country, register your trademarks there. Few things are worse than making the investment to expand into a new market — only to be charged with infringement by an unscrupulous pirate who has registered your trademark.
   
   Every restaurant owner should be aiming for two things: 1. Selecting names, slogans, and logos that stand out in consumers' minds as belonging to you — and only to you. 2. Establishing and protecting those marks so that they consistently convey your brand identity — and nobody else's.