The Aspects of Intellectual Property for Restaurants

Restaurants are multifaceted businesses, exploiting Intellectual Property. Examples include the series The Bear and the book Kitchen Confidential by Anthony Bourdain.

Restaurants are complete businesses with the capacity to exploit various fields of Intellectual Property. The subject is widely covered in literature, including series such as The Bear, which portrays the backstage of a restaurant and its difficulties. Or even through books, such as the one written by chef Anthony Bourdain, Kitchen Confidential, which has had a lot of repercussions worldwide, given the comments on practices that are unknown to the general public.

Brands:

  • Trademark registration is essential for restaurants to protect their rights to their name and visual identity;
  • Even so, many restaurants don’t have trademark applications or registrations with the INPI – National Institute of Intellectual Property, usually because they don’t even know about the need for this essential protection;
  • Registration prevents third parties from appropriating and misusing the restaurant’s brand, as well as facilitating the protection of other intangible assets linked to the brand, such as the website domain and the enterprise’s social networks;
  • It is possible, for example, to register dish titles, which can be considered essential for discriminating the identity of some restaurants.
  • Another important aspect is the possibility of registering the chef’s own name. In Brazil, we have some well-known chefs with television shows and social media profiles. Registering a trademark also helps to protect you in these environments and even increases the activities of the professional who is dedicated to the world of gastronomy.

Recipes:

  • There is currently a great debate about the protection of gastronomic recipes against indiscriminate use by third parties;
  • The protection of these rights through Copyright is the most interesting in this sense, as it protects the exclusive right to the recipe for life and years after the death of its creator;
  • However, some courts have already rejected the use of this legal institute to protect gastronomic recipes that have allegedly been copied or misused;
  • As has been pointed out, there is the possibility of protection through this route, as long as there is proof of its distinctiveness and that the dish has elements that consider it beyond food and the provision of basic needs. However, the issue is still the subject of debate and developments.

Patents:

  • Patents are generally not accepted as protection for gastronomic recipes;
  • Even so, restaurants can become environments prone to the development, sometimes unintentionally, of inventions and utility models that can be patented;
  • Patenting an invention is not only beneficial for preventing third parties from misusing the idea, but also for the possibility of making a profit from licensing it to anyone interested in using the invention.

Trade dress/unfair competition:

  • Another alternative for protecting not only gastronomic recipes, but also a restaurant’s overall image, is the use of unfair competition complaints;
  • Trade Dress is the term used for the “copying” of key elements characteristic of a business and there are several Brazilian court decisions that have condemned businesses for unfair competition, precisely for appropriating elements of restaurants in order to confuse the clientele and attract more customers to the business itself.
  • Example: McDonald’s is known worldwide for a number of distinctive characteristics that make up its brand identity, such as the golden arches of its logo, the way it is served, its clothing, its packaging, as well as its own “mascot”, the McDonald’s clown. If, for some reason, a third party appropriates this entire image of the fast food chain, even if there is no association with the brand’s name or logo, McDonald’s could easily stop the appropriation.

Franchises:

  • Franchise businesses are very complex and must be well structured and managed;
  • The Intellectual Property assets of ventures of this type are extremely valuable, since it is the mixture of the transfer of business know-how with permission to use the brand and other properties that characterizes franchises so strongly;
  • It is therefore necessary to keep the business’s portfolio of Intellectual Property assets up to date and legally protected, avoiding any problems with franchisees, consumers and competitors.

In summary, it is possible to say that a series of elements that deal with Intellectual Property are present in the day-to-day running of a restaurant. From your name, logo, your own chef or even the recipes and look of your establishment.

Daniel Marinho – Intellectual Property and Personal Data Protection Partner at PDK Advogados. Acting pro bono as a lawyer for the development of the Privacy and Data Protection Program of the Instituto da Criança/RJ.

 

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