I recently had my first Shake Shack experience while passing through JFK airport in New York last month.  For those of you who don’t know, Shake Shack is a popular fast-food chain offering burgers, hot dogs, and milkshakes which originated in New York and has seen recent expansion in other markets.  While waiting in line, which extended all the way to my gate, I had the opportunity to fully examine the menu.  As others were salivating at the thought of a juicy burger and a large milkshake they would probably regret midflight, I took a look at how Shake Shack utilized its trademarks on its menu.  I even snapped a picture so I have something to post on the future blog post I knew I was going to write:

A look at the burger section of the menu immediately teaches us a number of things.  If you look closely, there is a ™ or a ® symbol after 3 of the 5 options on the menu: ShackBurger, SmokeShack, and Shack Stack (Sorry about the glare in the photo…you’ll have to just trust me on this one).

Now, I know what you’re thinking…why do some have a ™ and others a ®?  That’s a great question with a pretty easy answer.  A ™ is used when you don’t have a federally registered trademark.  In other words, you can use this to tell people “hey, this is my trademark.”  Whether or not you will be able to get any rights to this as a common law mark depends on the actual mark and how you use it.  Some people who use a ™ never bother with a federal registration and are OK with the limited common law rights they may get.  Others, like Shake Shack, use it before and during the federal registration process.  Which leads me to the ®.  You can only use the ® symbol after you have registered your trademark with the USPTO.  This doesn’t mean after you have filed an application.  This means after the USPTO has allowed your trademark and has issued you a registration certificate.  Using the ® before that time is illegal.

Why doesn’t Shake Shack put a ™ after ‘Shroom Burger and Hamburger?

Another great question!  The reason there is nothing after those names, is because those terms are descriptive.  When you look at a menu and order a “Shroom Burger” or “Hamburger,” you know exactly what you are getting; a burger with mushrooms and a regular hamburger, respectively.  The USPTO does not grant trademark registrations for descriptive terms, which is exactly what these are.

What else can trademarks tell us?

Oftentimes, trademarks give us a glimpse into what’s to come.  Companies file “intent to use” trademark applications in order to reserve names that they would like to offer products under.  In this case, Shake Shack has recently filed an application for the name “Chicken Shack” to cover chicken sandwiches.  It’s important to note the versatility of trademarks here.  They aren’t just use to protect a restaurant or company name, but also can protect product names.

One thing we do know is that the “Chicken Shack” filing is still fairly new (filed in April 2015).  If and when Shake Shack decides to debut it on its menu, it’ll make sure to use a ™ after the name until it registers with the USPTO.