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Trademark Type for CT Restaurants? Text - Design - Both?
How do restaurants in Connecticut file for trademark rights: plain text; stylized text; design plus text; or design only? And why?
Takeaway:
In Connecticut, marks filed for restaurant services typically follow the following breakdown: 67% plain text; 2% stylized text; 28% design plus text; and 3% design only.
Details:
Between the dates of 12/31/2016 to 1/1/2021 there were 304 federal trademark registration applications for restaurant services with owners of the mark located in Connecticut.
- Out of those 304 total applications:
- a) 205 applications were filed as a plain text mark
- b) 6 applications were filed as a stylized text mark
- c) 84 applications were filed as a design plus text mark
- d) 9 applications were filed as a design only mark
(There were 5 applications with an unknown status of their mark type – those applications were excluded from the numbers). (Trademark and Servicemark nomenclature was interchanged for ease)
What is the reason why there is this breakdown of the type of mark chosen for a restaurant – or why is a mark filed as a particular type of mark?
Plain Text Marks:
- A) Ease to the Consumer:
Plain text marks tend to be an easy way for consumers to recognize – and then refer back to that mark in the future. Example: A consumer can recognize a text name for a restaurant. And the consumer can call the restaurant by its plain text name – which is not easy if only a symbol is used for the mark.
- B) Longevity:
Generally, using a plain text mark will cover rights in multiple forms of the use of the words – in plain text or in a stylized form – even if the stylization changes over time. This gives more options to the owner in the future. In order for a registration to gain renewal – the use of the mark needs to be the same as the original application – meaning the stylization cannot change. Therefore, a plain text mark has those significant advantages – the reasoning why a majority of applications are for plain text marks.
Stylized Text Marks:
- A) Lack of Longevity:
The number of stylized text mark applications is so low because of the inability for changes over time.
- B) Minimal Benefit Over a Plain Text Mark:
A plain text mark will give protection to words even in a stylized form. A plain text mark application is not required even if the mark is used in a stylized form unless an element of the word(s) in the mark are formed by an essential element which cannot be replicated by a standard character of plain text – which would then require a stylized text mark application.
Design Plus Text Marks:
- A) Concerns About Longevity of the Mark:
For marks which contain a design plus text, there needs to be the same consistency as explained above for stylized text – for a renewal of the registration. Therefore, a mark may be chosen which is text only – or at least filed as text only – to increase the chances of longevity if modifications are expected to occur.
- B) Possible Larger Coverage of Rights of a Design Plus Text Mark versus a Plain Text Mark:
When determining the similarity to another mark, for a mark of a design plus text – both parts of the mark, the design and the words, will be considered for similarity to other marks – although generally the words will be considered the dominate feature. Therefore, there is the advantage that inclusion of the design element as part of the mark will carve out an area of protection such that the design will exclude others from using a design element which has a confusingly similar design for a similar good/service – if there is enough similarity between both marks in their entirety.
- C) May be Required to Include Design Elements:
The filing as a special form mark (which includes a design plus text mark) can be required – over a plain text mark – where an element of the word(s) in the mark are formed by a essential element which cannot be replicated by a standard character of plain text. So, the reasoning for filing a design plus text mark – rather than just the plain text – can be multifaceted. In the end, the number of applications for design plus text, is fewer than the plain text mark applications because there are some disadvantages compared to plain text – although the numbers are significant because there are reasons for a design plus text applications.
Design Only Marks:
- A) Lack of Ease to Consumers - Lack of Ability to Refer to the Brand Only to Observe the Brand:
The number of design only applications are slow low because functionally of a design only is low – especially in the restaurant industry – because it is difficult to refer to a restaurant only by a design. A consumer doesn’t have a name to call the restaurant. A design only mark is for the consumer to view the mark and recognize it and observe it – without the ability to easily express that mark to someone else.
- B) Very Large Exposure Required for Recognition:
Situations where design marks are more functional are where the number instances of exposure is very high – such as large brands. And, the majority of restaurants in pursuit of federal rights for their mark(s) in Connecticut likely don’t have the volume – or breadth of exposure. (Examples: A logo for a fast food chain which is seen over-and-over again where the brand wants to isolate brand awareness to an isolated symbol where the observer will recognize the brand purely by the symbol.)
- C) Skewed Benefit If Brand Recognition is Required in A Very Small Physical Space for the Mark:
Another situation where a design only mark is more functional is where there is a lack of space for writing out a full word or phrase – and when an isolated symbol will serve a significant purpose. (Example: For a different industry such as software – where the brand wants to use a symbol in a very small space – such as app tile on a phone screen – there is an added benefit.)