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Protecting IP in the Restaurant Industry: Trademarks and Brands, Copyrights, Licensing, and Performance Rights

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Protecting IP in the Restaurant Industry: Trademarks and Brands, Copyrights, Licensing, and Performance Rights Presenting a live 90-minute webinar with interactive Q&A Protecting IP in the Restaurant Industry: Trademarks and Brands, Copyrights, Licensing, and Performance Rights TUESDAY, NOVEMBER 29, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Glenn S. Bacal, Managing Attorney, Bacal & Garrison, Scottsdale, Ariz. Janet F. Satterthwaite, Partner, Potomac Law Group, Washington, D.C. Steven S. Sidman, Founder and Managing Member, The Sidman Law Firm, Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-570-7602 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again. Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35. Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: • Click on the ^ symbol next to “Conference Materials” in the middle of the left- hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. • Print the slides by clicking on the printer icon. November 29, 2016 Webinar 5 Today’s Discussion Topic Speaker Overview of IP issues in The USA in Janet the restaurant industry Real life stories Steve Real life court cases and what we Glenn can learn from recent disputes Q&A Group 6 Overview of IP Issues in the USA in the Restaurant Industry • Selecting and enforcing 1. Trademarks a strong name generally • Logos • Trade dress • Menu items 2. Trademarks • Ownership of IP and business • Licensing and investing 3. Trademarks and celebrity chefs 4. Entertainment and copyright 7 1. Trademarks generally Got a NAME? Four Key Elements to Consider Distinctiveness Clearance Registration Enforcement 8 Distinctiveness: Try to Choose an Inherently Strong Mark Mark type Example • RESTAURANT Generic • THE GRILL LOW Descriptive • HEALTHY LIFESTYLE RESTAURANT • NOODLE SHOP Geographically • BOSTON GRILL Descriptive • BAR HARBOR CAFE Suggestive • TACOLOGY PLG TEAM PLG Arbitrary • BUFFALO BILLIARDS Fanciful • saalna Degree ofdistinctiveness Degree HIGH Use of Chef’s • [Separate topic] Name 9 Clearance: Do Your Due Diligence • Searching– Don’t get sued! – Knockout – Full + Opinion – Internet – Special considerations 10 Registration: Navigating the USPTO • “Goods and Services” Restaurant Services — Live marks • Almost 40,000 records in USPTO “live” database • Cost is minimal • Registration takes about 18 months on average • Intent to Use option 11 Enforcement: Be Vigilant • Police against Infringers – Watch Notices – Internet searching – Cease and Desist Letters and Lawsuits 12 Got a LOGO? • Own the logo—assignment from designer • Register the logo with copyright Office • Register as Trademark 13 Got an Awesome Design Concept? Consider Trade Dress Recent application by KFC The color(s) red and white is/are claimed as a feature of the mark. The mark consists of a three- dimensional configuration of a tower with angled roof on its front face with red and white vertical stripes, and a panel of red and white vertical stripes on the side wall of the rectangular building. The broken lines show the placement of the mark in relationship to the structure, but no claim is made to the structure identified by the broken lines. 14 Two Pesos v. Taco Cabana*: A Cautionary Tale "a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme.” * 505 U.S. 763 (1992) 15 Example Trade Dress: Goats on a Roof Owner (REGISTRANT) Al Johnson's Swedish Restaurant and Butik CORPORATION WISCONSIN 702 Bay Shore Drive Sister Bay WISCONSIN 54234 Description of Mark The mark consists of goats on a roof of grass. The dotted lines in the drawing are intended to indicate the location of the mark and are not a feature of the mark. 16 Got Menu Items? Menu/Drink Items and Rights of Publicity Stay Classy New York Will Farrell-themed Bar Sample Entries • DID WE JUST BECOME BEST FRIENDS? (Two shots, one for you and one for a • friend. you can also leave a shot for a friend to redeem at a later date.)….$10 • DIRTY MIKE AND THE BOYS. (Any two draft beers and a house shot!)….$14 • HELP ME TOM CRUISE. (Spiced Rum, Ginger Beer, Vanilla, Bitters)…..$12 • GREAT ODIN’S RAVEN. (Light rum, ginger beer, lemon) ….$8 • MILK WAS A BAD CHOICE. (Vanilla Stoli, Vanilla Schnapps, Milk, Ice)….$10 • MUGATU MULE. (Tequila reposado, lime, bitters, ginger beer)….$10 • SHAKE AND BAKE. (Shaken whiskey and sour mix with a splash of ginger beer, • served with cherries and lime wedge)….$10 • SMELLY PIRATE HOOKER. (Jalapeno Margarita, Stoli jalapeno, orange • juice, sour mix, Muddled jalapen, lime juice)….$12 • GATOR DON’T PLAY NO SHIT. (Tequila, Orange Juice, Pineapple Juice, • Blue Curacao)…..$12 • WE’RE GOING STREAKING! (Adult Kool Aid! Dont ask just get naked)…..$14 • A WHALE’S VAGINA “San Diego” (Vodka, triple sec, orange juice,sloe gin)….$12 • YOU’RE MY BOY BLUE! (Gin, Blue curacao, Sweet and Sour, Pineapple Juice)….$12 17 Will Farrell-themed Drinks • FRANK THE TANK. (A Pint Of Guinness & A Shot Of Whiskey)…..$10 • NEW FALL/WINTER DRINKS: • SON OF A NUTCRACKER. (Fireball, Rum Chata, Nutella, Eggnog.)…..$14 • BUDDY’S PUMPKIN PIE. (Pumpkin Liquor, Vanilla Vodka, Nutmeg and Cinnamon, shaken until • perfect)…..$12 • THE ELF. (Maple Bourbon, Maple Syrup, Candy Cane Stir)…..$14 • THRONE OF LIES. (Cherry Vodka, Peppermint Schnapps, Sloe Gin, Peppermint Candy)…..$14 • HANSEL’S SO HOT RIGHT NOW. (Fireball, Cider Beer, Grenadine, Mudled Cherries)…..$12 18 2. Trademarks and Business Got Partners or Investors? – Who owns the mark? – Organic and messy growth of Restaurant Groups – LP’s and LLC’s Expansion to other markets – Have a Prenup! – Think about: Spin off products—cookbooks, retail food products 19 Got a Licensing Opportunity? • Pros: Revenue, brand extension Licensing- especially to new cities -OUT • Cons: Quality control is a burden 20 Got a Licensing Opportunity? [Cont’d] Licensing IN • Pros: Ready-made trademark and brand • Cons: You are building a brand not owned by you; can lose the License Franchising: the MegaLicense 21 Got an Investment Opportunity? • Due Diligence for Investors – Trademark audit – Who owns the IP—What are you buying? 22 3. Trademarks and Celebrity Chefs Got a Celebrity Chef? • Use of own name as a trademark • Sale of restaurant concept with your name vs. right to use own name down the road 23 Celebrity Chefs: How Do They “Own” Their Marks? • Jose Andres — filed in the name of Jose Andres Corporation • Wolfgang Puck — filed in the name of Wolfgang Puck Licensing LLC • Guy Savoy — filed in his own name 24 4. Entertainment and Copyright Got Entertainment? • Recorded Music, Live Music • Got the Big Game on the TV over the bar? • Big Topic: beware! 25 Protecting IP in the Restaurant Industry: Trademarks and Brands, Copyrights, Licensing, and Performance Rights Copyright, Name & Likeness Rights and Other Non-Trademark Considerations General Considerations • In an increasingly chef-driven restaurant culture, intellectual properties (in addition to a restaurant’s name, logo and trade dress) must be taken into account, from both the owner-operator’s/investor’s and the chef’s point of view. – Recipes – Menu contents and graphic design/layout – Chef’s name & likeness – Inventions & improvements • Affected by copyright law (federal), trade secrets law (federal and state), right of publicity, patent law (federal). • Dealt with by contract, via various means. 27 Recipes Not protected under the Copyright Act, per se. §102(a)’s list of original works of authorship does not include recipes. §102(b): “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” See Copyright Office Circular FL-122: “Copyright law does not protect recipes that are mere listings of ingredients…. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.” 28 Recipes, continued • “Tangible fixation” of independently copyrightable expression may be protectable under copyright. – Particularly literary descriptions of recipes, ingredients, techniques and processes (e.g., in cookbooks, online, white/chalkboards, etc.).
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