Can a restaurant menu be trademarked?

Can a restaurant menu be trademarked?

If the menu does not qualify as a descriptive trademark, the menu can be registered.

What is a descriptive trademark?

So what is a descriptive trademark?

A descriptive trademark is a trademark that consists only of a mark that indicates the product's place of origin, place of sale, quality, raw materials, etc. in a commonly used manner. (Article 3, Paragraph 1, Item 3 of the Trademark Act)

If the designated product is tea, the trademark "Uji tea" will be rejected as a descriptive trademark.

The reason such descriptive trademarks are not registered is that many people need to use them in the course of a transaction, and one private person should not be allowed to monopolize them.

For example, if the designated product is ramen noodles, the trademark ``Pig's Foot Soup Ramen'' will be rejected as a descriptive trademark.

The trademark "Pig's Foot Soup Ramen" is a descriptive trademark because it is ramen made from soup made from pig's feet, which is the raw material for ramen.

Please note that the designated product ramen refers to ramen that is distributed independently, such as cup ramen, rather than ramen that is served at restaurants.

A descriptive trademark is a trademark that consists only of a mark that indicates the product's place of origin, place of sale, quality, raw materials, etc. in a commonly used manner, but if it does not meet this "only" requirement, it is not a descriptive trademark. It will be gone.

For example, if you include some original word or name, such as "Ma-san's Pork Foot Soup Ramen," it will no longer be a descriptive trademark, so there is a possibility that it will be registered as a trademark.

However, if you designate a food product as a designated product and acquire trademark rights, it is effective when selling independently distributed food products such as cup ramen, but the use of the menu by others at a restaurant is prohibited. I don't think it can be stopped.

This is because the designated goods and services are considered to be dissimilar.

 

Can a menu that becomes a descriptive trademark be registered as a trademark?

Is it absolutely impossible to register a trademark that becomes a descriptive trademark in relation to a menu item (e.g. ramen)?

Even with such a menu, if the designated service is "providing food and drink," it is not a descriptive trademark and may be registered.

To give a specific example, the trademark ``Niku Sushi'' is registered as a trademark (registration 5368690) for the designated service ``Provision of food and beverages.''

We believe that the trademark "Niku Sushi" would not have been registered if "sushi" had been designated as a designated product, as it is a descriptive trademark consisting only of meat and sushi, the raw materials for sushi.

Does the use of a trademark on a restaurant menu constitute the use of a trademark for the provision of food and beverages?

Does the use of a trademark on a restaurant menu constitute use of the trademark in connection with the provision of food and beverages?

Regarding this, there is a court precedent called the Imperial Court Case (2014 (Wa) No. 11616), in which the use of a trademark on the menu of a restaurant is recognized as the use of a trademark in relation to the provision of food and drink.

In this case, the trademark holder of the trademark "Imperial Dynasty" and the designated service "Providing food and beverages" was the defendant who was serving Xiaolongbao at a store by displaying a menu consisting of "Imperial Dynasty Xiaolongbao." This is a case in which the company sought an injunction and compensation for damages on the grounds of trademark infringement.

The court stated that this "Kocho Xiao Long Bao" is displayed on the menu served at the defendant's store, and that this menu display is for the use of those receiving services at the defendant's store that provides Chinese food. It was determined that the act of attaching a mark to a product falls under the use of a trademark under Article 2, Paragraph 3, Item 3 of the Trademark Act.

 

summary

 

Restaurant menus may be registered if the designated service is "providing food and beverages."

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