This story from the KC Business Journal came out today. I really do feel for Barden. It sucks to find yourself on the wrong side of a legal showdown with a corporation. They have deep pockets and will always be able to win in this age when lawsuits are more about who can pay their lawyers the longest while this drags on. My heart breaks when she talks about the deep personal connection she has to the restaurant and, by extension, the name. I know first hand how much of your soul goes into a restaurant. It is like a child. And the name is the embodiment of that.
But in the end, this story is about business. Now, full disclosure, I’m a librarian whose husband owns a restaurant. I know way more than the average person wants to about intellectual property laws (copyright and trademark). I’ve been on Gene and Dan from the beginning to trademark everything. Sure we started as a one barrel brewpub in a fairly small suburb of Kansas City. Our main goal at the start was to get the doors open and find a way, every day, to keep them open. But the real question you need to think about when you start a business is how big do you really want to go (which is another interesting question in the brewery world which I will write about soon). Gene and Dan knew they wanted to get to distribution. Once you think you might expand out of your geographic area with your name/logo (and the name and logo of every beer you make), you need to be prepared for that. You need to cover your butt legally.
First and foremost, the trademark process lets you know whether anyone else out there already has the name. In doing that homework, we were able to find out before we opened that no one else had Rock & Run trademarked in the hospitality arena. If we hadn’t done that homework and we were wrong, we would have found out now, as we move into distribution (in the form of a cease and desist letter when we move into a market that is already using the name). At that point, all the brand awareness you’ve created is useless. You have to change all of it. Essentially, you’re starting at ground zero again. It’s suicide for a brewery. Brand awareness is everything.
If no one has the trademark yet, then you’re in the clear. But you need to grab that trademark for yourself. Otherwise you find yourself in Barden’s position. The company who owns the name only trademarked it a year and a half ago. She’s been in business for 15 years using the name. But it may not matter. If she doesn’t win her lawsuit, she’s limited to the KC market unless she changes the name of her restaurant.
Unfortunately, this happens fairly often in the world of entrepreneurs. Trademarks live in the world of a corporate mindset. Small businesses are often created by dreamers and artisans with a passion for what they do. It is often difficult for the passionate artisan to wear the corporate hat and handle things like trademark and licensing. And there is no governing body that requires a business to register trademarks before they open their doors. So small business like Barden’s don’t find out there is a problem until it comes knocking on their door in the form of a cease and desist letter. And by then, it is usually too late.