A recent battle between Miller’s Ale House and Boynton Carolina Ale House, LLC in Florida is a blow to trade dress protection for restaurants and bars. The 11th Circuit (Federal) Court held that the features of the restaurant décor, (such as arrangement of exposed kitchen, uniform style, central bar, and wood-panel walls) were typical of brewpubs and sports bars and not “particularly unique.” The predecessor of Miller’s Ale House even had 5 copyright registrations for different floor plans with different arrangements of common elements of the décor theme, but this was not enough to give it trade dress protection under Federal Trademark Law.
Restaurateurs (especially those with franchises or multiple locations) will need to incorporate unique elements that are extremely identifiable and distinguishable to the public. To strengthen the branding, campaign, a restaurant can incorporate the distinguishing décor element in its marketing and tag lines. Making that connection in the mind of the public is the key to success. When restaurant decor is elevated to protectable status under trade dress laws, the restaurant can prevent other establishments from entering the same market with confusingly similar décor themes.