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Is my restaurant design protectable under the law?

Question: The theme of this Restaurateur is “Restaurant Design.”  Is my restaurant design protectable under the law?

Answer: Generally, yes, under numerous theories, two of which I discuss here.  First, you may be able to protect the architectural design of your restaurant, if you own the design drawings.  In 1990, Congress enacted the Architectural Works Copyright Protection Act which provides copyright protection to original architectural designs, regardless of form (plans, drawing, construction, etc.).  But beware!  Unless your architectural contract provides otherwise—regardless of who “paid” for the plans—the original architect or designer retains the copyrights to the architectural works.  Restaurant owners must insist on language in their architectural contracts that assign all intellectual property rights, including copyright, that the architect or designer may have in the architectural designs.  If you own all the rights in the architectural designs as opposed to the architect, then you have the right to use your architectural designs on future restaurants without additional payments or license agreements with the architect.

Second, your restaurant design probably has specifications related to the size, layout, color scheme, shapes, textures, graphics, etc. —the visual impression you want your restaurant to leave with your customers.  This visual impression or “look and feel” is your “trade dress,” which may be protectable under the United States Trademark Act.  Your trade dress may be registered with the United States Patent and Trademark Office if it is (1) non-functional (meaning the elements are not essential to the use or purpose of the article or if it affects the cost or quality of the article – a Coke bottle is functional in that it holds a liquid, yet the bottle’s shape or ribbing are non-functional because they are not necessary to perform that function) and (2) distinctive (either inherently distinctive – unusual and memorable and likely to act as an indicator of origin of the product; or acquired distinctiveness through secondary meaning – amount of sales, advertising, length of time trade dress has been in use, etc.)  But even if you do not have federally registered trade dress, you have “common law” rights that you could enforce to prohibit someone from copying the “look and feel” of your restaurant.

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