Branding and Trademark 101 for Food Truck Businesses

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ftm-social-media7 Trademark Attorney Chicago
It’s lunchtime.
Hungry 9 to 5ers troll the food truck zones for the latest and greatest delectables on wheels.
More than 7 trucks are lined up, back to back.
Now, they must decide which truck will receive their hard earned cash.
They could choose the truck with the shortest line, right? But no doubt, they’ll wonder “Why is the line so short?”

Of course, you’ve got a core group of loyal customers. That’s fantastic.
But, hundreds of potential customers are untapped + green to the food truck world.
How do they choose? 
Before they even see your amazing menu.
Before they can be greeted with a dazzling grin, and stellar customer service. Yep, before that.

They choose the truck with the most stand out brand.

It’s your first impression and what makes people say, “Oooh let’s go to that truck right there.”

Your food truck brand is your first handshake with the public.

Not only that, but your brand is a company asset. It can be leased, or sold. It adds value to your bottom line…if you’ve taken the necessary steps to own the trademark for it.

It’s time to inventory  your brand elements (think: brand name, logo) to determine whether they can be protected with a trademark. 

Not any random word or symbol can be registered as a trademark. A trademark commonly refers to a name, slogan, brand, logo, or combination of,  that identifies the source of a good or service  (sound and color are less common forms of trademarks).

The examining attorneys from the United States Patent and Trademark Office (USPTO) are responsible for reviewing and analyzing all trademark applications. If your trademark, does not meet the criteria pursuant to the Lanham Act, then guess what?

Access denied.

Owning a trademark is not a right. It is a privilege. 

Now that you know that none of us are entitled to a trademark for our brands, let’s talk about criteria that you need to keep in mind as you develop your brand.

1. Is your logo/tagline/brand name unique?

A trademark cannot create a “likelihood of confusion” with another mark. The likelihood of confusion test is not based upon your personal opinion, what the general public is likely to think. If the public is likely to mistake your trademark for another then it probably creates a likelihood of confusion.  Some of the factors that the USPTO will consider to determine whether there is a likelihood of confusion are:

  • Similarity in appearance, phonetics (sound), and commercial impression;
  • Similarity in trade channels (brick and mortar distribution v. online);
  • The relatedness of the goods or services.

While developing your brand keep these things in mind. An attorney will be able to conduct a more sophisticated analysis, but you can do a preliminary test on your own.

2. Does your logo/tagline/brand name simply describe what you do or sell?

A trademark cannot merely describe your good or service. Specifically, it cannot primarily describe an ingredient, quality, characteristic, function, feature, or purpose. Remember, what I said earlier? A trademark identifies the source. If your brand name pretty much just tells the public what you do, think about how you can tweak the name. If you are dead set on keeping it, then definitely consult with an attorney who has trademark experience to walk you through alternate strategies.

3. Does your logo/tagline/brand name primarily describe a geographic location?

Again, the USPTO will refuse your registration if your logo/tagline/brand name:

  • Includes a geographic location as a primary feature;
  • Buyers would think that the goods or services come from the place identified in it;
  • It actually identifies the geographic origin of the goods or services.

Now, there are other (yet less ideal) ways to handle this scenario.  For example, you might be able to register the logo, but not standard character (the words). The problem here is that you have a trademark for the design only. If someone uses the name of your brand in a different font, color, image then you are shit out of luck.

4. Is your brand name your name?

You cannot register your surname as a trademark just because. You must demonstrate commercial significance of the mark – that you’ve been using it “openly and continuously” as it pertains to your goods or services for quite some time. The burden of proof is typically high for this criteria and it may take a while to get registered. The best thing that you can do is to use it consistently (as it pertains to your goods or services).

Use this post to double check your brand elements. It might need some tweaking, and that’s fine. You want your brand to not only help you stand out in the crowd, but position it as a legit asset that can add value (yes, cha ching) to your bottom line.

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