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 . 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 , which includes items such as . 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 , 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 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.)

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First, harmonisation of national trade mark laws in the Union has been “tight”. In this regard, for reasons that make sense in the European political and legal theatre, it is different from the international model of so-called “minimum rights” harmonisation that drove convergence of trade mark norms for the preceding century. Second, the Trade Mark Directive (with the aid of the Court of Justice and national courts) has effected almost total harmonisation of substantive trade mark law, belying the claims of limited harmonisation that are found in the recital to that Directive. Third, the Court of Justice has exhibited a tendency to limit any room for member state manoeuvre, for example, finding that even optional provisions of the Directive must be given a single European meaning. The Court has paid little attention to concerns of subsidiarity. Finally, additional pressure to find single European solutions results from the existence of a Trade Mark Regulation that creates a counterpart unitary regional right (the Community Trade Mark, or CTM) and attendant EU institutions to administer and enforce that right.

This parallel EU-level regime tends to reinforce the idea that trade mark law has been wholly Europeanised, and exerts pressure on the content of Directive-driven national law because the demands of vertical coherence have trumped the potential benefits of regulatory competition between national and regional regimes. In short, there has over the past twenty years been an extensive and deep Europeanisation of trade mark law. But this in turn raises ongoing questions about how best to develop harmonised European principles, because harmonisation is a dynamic lawmaking process and not a static legislative instrument.

In this Chapter, I consider how the process of harmonisation has affected the development of optimal principles of trade mark law, an analysis that is necessarily informed by substantive preferences. It is only by measuring harmonisation by reference to some form of substantive metric that a full assessment of the harmonisation process can be made. I suggest that it important to recognise the important role of national courts in the development of EU trade mark law (in part because of the nature of the field of law), and that paying attention to national legal traditions would assist the Court of Justice in improving the quality of European trade mark law.

Featured here is the beginning of a paper by , Professor of Intellectual Property and Information Technology Law at the University of Oxford. He is also Director of the Oxford Intellectual Property Research Centre, and a Professorial Fellow of St. Peter’s College. The full article can be found .

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