There’s no denying that the restaurant business is a primary gateway to the workforce for many, with well over 1.2 million Canadians being employed through this $80 billion industry. While the quality of a restaurant’s food is integral to the restaurant’s financial success, the strategic use of intellectual property (IP), particularly trademarks, can give a restaurant an edge over its competitors and allow the business to prosper.

Trademarks can be used in a number of ways to protect multiple aspects of a restaurant business - from protecting the restaurant’s name, to the name of signature dishes, to even the distinctive layout and decor of the restaurant.

The importance of trademarks begins with the very name chosen for the restaurant operator’s establishment. Rather than going with something generic like ‘Michael’s Café’ or ‘Stacey’s Grill’, a local restaurant owner should make the effort to choose a name that is unique and distinctive. Choosing unique or distinctive names for menu items is also a great strategy to build value for the restaurant’s brand. A well-known example is McDonald’s "Mc" family of trademarks, which includes items such as McNuggets®, McSkillet®, and McCafe®. Although McDonald’s also has many product brands that do not contain its famous “Mc” prefix, this specific family of trademarks helps to make their brand identifiable and distinctive from their competitors.

A restaurant’s layout and décor can also be protected by IP. For example, the nationally known sandwich franchise Mr. Sub, which was known as Mr. Submarine until the early 1990s, successfully obtained an interlocutory injunction to prevent the defendants from replicating the layout of the plaintiff’s restaurants and passing off the restaurant layout as its own distinctive business design[1].

With the anticipated coming into force of the new amendments to the Trademarks Regulations, the protection of ‘non-traditional’ trademarks, such as scents, tastes, textures and sounds, will have the potential to revolutionize how restaurant businesses brand themselves.

For instance, restaurant owners will be able to seek legal protection for a scent that is distinctive to one of their signature dishes. The sense of smell is known to play an important role in memory, so a particular scent has the ability to form strong associations in one’s mind. Exploiting a distinctive scent associated with a particular menu item can have a profound impact on a restaurant’s ability to distinguish itself from its competitors beyond what traditional visual  trademarks can achieve.

A well-developed IP strategy can be an effective tool when trying to build a brand. The expansion of the scope of protection for non-traditional trademarks will allow restaurant operators more creative ways to protect their businesses and differentiate themselves from their competitors. Until then, it is clear that IP, particularly trademarks, can be employed by restauranteurs to help set them apart from its competitors, and hopefully allow their businesses to thrive in this highly competitive multi-billion dollar industry that so many struggle to succeed in.

Neda Foroughian is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[1] Mr. Submarine v Bikas (1975) 24 C.P.R. (2d) 135 (Ont. H.C.)