Food truck dining has exploded in popularity in recent years. Here in Nashville, options abound: The Grilled Cheeserie, Deg Thai, Biscuit Love Truck, Retro Sno, and Mas Tacos Por Favor to name just a few. There are so many food trucks that they even have their own association: Nashville Food Truck Association.
Besides delicious food, clever names are one of the hallmarks of successful food truck businesses. To protect their names and reputations and prevent consumer confusion, savvy food truck owner-operators are recognizing the benefits of owning federal trademark registrations. This has led to a number of recent federal trademark application filings, including the following:
- BOKA TAKO TRUCK (Serial No. 86/308,166);
- FRY ME TO THE MOON (Serial No. 86/063,858);
- TOPO'S MYTORNADOPOTATO.COM (Serial No. 86/244,046);
- CRUZIN' CRUSTACEAN (Serial No. 86/241,875); and
- BROTHERLY GRUB (Serial No. 86/042,544).
If you are thinking about starting a food truck business, then you should consider the following two factors before choosing a name: (1) whether the name you want is registrable as a trademark; and (2) how difficult it will be to protect your trademark based on the strength of the mark selected.
The most common reason for the U.S. Patent and Trademark Office to refuse registration is a "likelihood of confusion" between the applicant's mark and a pre-existing mark owned by another party. Conducting a trademark search before choosing a name is very important because the results will reveal any such conflicts. A search could save you the expense of applying for a mark that is not likely to be registrable because another party has stronger rights.
A trademark search could also save you the expense of re-branding if another party with stronger rights accuses you of infringement. The owners of an Indianapolis food truck named "Little Eataly" learned this lesson the hard way when lawyers for Mario Batali and Joe Bastianich's restaurant group sent them a cease and desist letter. Their story has received extensive media coverage:
Assuming that your proposed name is registrable, then it is important to assess whether the proposed mark is "strong" in a legal sense. The strongest and most easily protected marks are invented or arbitary words (e.g., HÄAGEN-DAZS for ice cream or APPLE for computers). Marks that suggest, but do not describe the applicant's good or services, are also registrable and relatively strong (e.g., DAY AT A GLANCE for calendars). Marks that describe the goods or services are generally considered "weaker" and more difficult to protect (e.g., PARK 'N FLY for airport parking lots).
Of course, there are other considerations involved in selecting a mark, which is why it often makes sense to consult a trademark lawyer. Working with a trademark lawyer will help you choose a mark that is registrable and easily protected.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
