A restaurant that has a distinctive and recognizable décor theme can protect its “look and feel” through trade dress law, keeping competitors from adopting confusingly similar décor in their restaurants. However, successful restaurant décor trade dress claims require a substantial evidentiary showing. In a Michigan case by a pizza franchisor, the district court found in favor of the alleged infringer because the franchisor did not meet its burden of proof. The court did not find protectable trade dress under the Lanham Act’s Section 43(a) because the pizza franchisor did not show:

• Each franchise location used the specific trade dress design elements
• Other fast food restaurants didn’t use those design elements
• The alleged infringer used the claimed design elements
• Customers exclusively associated those design elements with the franchisor
• Other restaurants did not offer similar food combinations

The court provided an excellent test: without use of the restaurant’s name and logo on the menu, is there anything to alert the average consumer that they are in the chain restaurant?

Restaurant décor must be distinctive and the establishment’s marketing must highlight the design features so the consumer comes to associate the design elements with the brand. For example, chains like Bugaboo Creek, Rainforest Café, and Hard Rock Café have décor themes including design elements that are definitely not associated with restaurants in general. The décor is instantly recognizable by the public as brand specific.

Your dream team should involve your interior decorator, marketing person and your trademark attorney. Together they can create a protectable brand image for your restaurant.