Choosing a restaurant name is an important, but complicated, process. The name needs to reflect the restaurant’s ambiance and food, but it also needs to be memorable. It needs to attract the target audience and it needs to be something the owner can live with for (hopefully) a very long time.
The complications don’t stop there because, more than anything, the restaurant name needs to be legally viable so that no other businesses can step in and rightfully order the owner to stop using it.
Lawsuits over restaurant names are all too common. As of 2017, Stubb’s Bar-B-Q restaurants are being forced to phase out their name after McCormick & Co. Inc. and its Austin subsidiary One World Foods Inc., which makes Stubb’s Bar-B-Q Sauces, brought a trademark lawsuit against them.
Even restaurants with time on their side aren’t immune. The owner of Varsity Bar-B-Q & Creamery in Kannapolis, North Carolina, was forced to change the name after 20 years when The Varsity, a chain restaurant five hours away in Atlanta, sued, claiming people were getting the two confused on social media. Instead of spending an outrageous amount of money on the lawsuit, the owner of Varsity Bar-B-Q changed the name to Field House BBQ.
It’s even possible to be sued over your own name, as Alon Shaya found out after he left the Besh Restaurant Group and his namesake restaurant, Shaya. Shaya filed a federal trademark request for his own name and sent a cease and desist letter to the restaurant, but attorneys at the restaurant responded by filing a lawsuit that would bar him using “Shaya” in any future restaurants he may open. How this one will shake out won’t be determined until 2019.
We spoke to industry experts, as well as a nightlife entrepreneur who was once served a cease and desist because of a bar name, to find out the thought that goes into naming a restaurant, as well as how to avoid legal drama.
The Naming Process: From Finding the Perfect Name to Assessing the Risks
Jacob Cross, vice president of marketing and public relations at Back of the House, the group behind some of San Francisco’s most beloved neighborhood restaurants, explains that choosing a restaurant name starts with the branding document. “That document basically defines our mission, brand essence, core belief, and brand personality,” he explains. “And then from there, we pull together a list of 100 to 125 different names we think would fit the brand.” Those names must all fit three or four pre-determined themes before the list is narrowed down to between 10 and 20. That shorter list is then routed through the home office as well as the team working on the project, and is finally whittled down to three to five names.
It’s not until that point that the legalities are considered. “Once we get it down to three to five names, we use Yelp, OpenTable, and Google to see if there are any other restaurants out there with the same name,” Cross says. “For instance, there is another A Mano in Philadelphia, so we had to ask ourselves, ‘Do we really want to go with that name? What are the legal ramifications?’” That is the point at which the name is sent to a trademark attorney to find out under what conditions the name was registered. “In the case of the other A Mano, the restaurant hadn’t registered it and wasn’t looking to grow outside of their state, so it wasn’t a conflict of interest.”
If there is another restaurant with that name, sometimes a deal can still be made, Cross explains. “For instance, when we named Uno Dos Tacos, there was a pizzeria called Uno Dos in another state, so we agreed we would not take Uno Dos Tacos outside of California, and we were able to use the name under those conditions. In the end, it really comes down to whether or not the other brand is looking to grow and whether we’re looking to grow.”
Andrew Freeman, founder and partner of AF&Co., a restaurant and hospitality consulting firm, warns not to fall in love with one name. “On every single project, we get to the place where someone really loves the name, and then we find out we can’t use it,” he says. “The reason for that is primarily because of the risk the owners are willing (or not willing) to take. Depending on whether or not the name has a national trademark or a trademark in just California, it digs into how you can use that name. In the case of a larger hotel company, they will not use a name unless they know that no one could possibly challenge it at any time or anywhere. So that starts to shorten the list because if it’s a great name, chances are someone’s already thought of it.”
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Freeman also warns that if there’s a name that’s already taken, it’s not as simple as just making a small change. “People think they can simply change a letter or add the word ‘the,’ but if someone licensed a name so that no one else can use it, changing a letter or adding a simple word is not going to do it.”
But the biggest mistake Freeman sees is when brand new restaurant owners have their heart set on a name and they ignore the legal advice they’re given. “They’ve decided they always wanted to name their restaurant ‘Ava’ and so they do it. And they may get a cease and desist letter or they may find out they have to change that name.”
The Dreaded Cease and Desist
Unfortunately, for most restaurant owners, if that cease and desist does arrive in their mailbox, they find it’s either cost prohibitive to fight it, or realize that they won’t win the case even if they do.
Duncan Ley, managing partner of Tonic Nightlife Group in San Francisco, opened Buffalo Club, a casual bar and restaurant in San Francisco’s Mission district in 2015, and thought all was well. “We named the place Buffalo Club. We spent the money on the logo, the design, we even had a huge mirror-plated buffalo mounted on the back bar, and then after six months, we got a cease and desist in the mail from The Buffalo Club in Santa Monica,” he says.
Ley admits that even though they looked around to make sure there wasn’t going to be any kind of trademark issue and didn’t see anything, in hindsight, they may not have done as aggressive of a search as they should have. Still, The Buffalo Club in Santa Monica is a fine dining restaurant. He wondered, Why would they even care?
“Later on, we realized that if you do patent or trademark something, [and] you don’t enforce it, your patent or trademark has the potential of being taken away from you,” Ley says. “So even if they didn’t really care, they had to enforce it.”
TNG didn’t want to get caught up in a lawsuit, so they agreed to change Buffalo Club’s name. The only issue was: To what? “We thought it would be hilarious that we received a cease and desist letter in the mail and then, in turn, named our place Cease & Desist,” he says. “It was just a fun way to handle it and people were stoked on the idea.”
TNG ended up selling Cease & Desist in 2017, though not because of the name. Still, Ley does admit that with future projects, he’ll do a little more due diligence, while also striving to be more creative. “In all honesty, I don’t think Buffalo Club is very unique; if you’re creative and original, then you probably won’t even run into those issues.”