The Problem With Putting Your Name on a Restaurant

Alon Shaya was 23 years old when he arrived in New Orleans to work for John Besh as chef de cuisine of Besh Steak, a position that would mark the beginning of a fruitful partnership between Shaya and the Besh Restaurant Group. The two went on to open Domenica, which specializes in regional Italian cuisine; Pizza Domenica, a casual offshoot; and then in 2014, a modern Israeli restaurant called Shaya, influenced by the chef’s Israeli heritage.

Praise and awards swiftly followed. Shaya earned a James Beard Award in 2015 for Best Chef: South (for his work at Domenica), and in 2016, Shaya (the restaurant) took home the award for Best New Restaurant. Just a few weeks after the Best New Restaurant nod, Shaya landed a cookbook deal for his eponymous restaurant; Shaya has called it a hybrid cookbook-memoir. “I would have never opened Shaya if my travels and [life] experiences hadn’t led me to confront myself,” he told Eater last summer.

But in September 2017, everything went south. Shaya says he was fired from the Besh group after he spoke with a Times-Picayune reporter for a story in which 25 current and former female Besh Restaurant Group employees alleged the company fostered a culture in which sexual harassment flourished. Besh later stepped down from his role at the group. Shaya subsequently announced he would be opening two new restaurants under his own newly formed restaurant group, Pomegranate Hospitality. The first, in New Orleans, will be called Saba; a second, in Denver, will be named Safta.

Meanwhile, the chef is now embroiled in a legal battle with his former partner. Most recently, Shaya abandoned his efforts to purchase the restaurant that bears his name, and instead went to court to ask U.S. District Judge Ivan Lemelle to force the restaurant to drop the name “Shaya” until a trademark lawsuit against his former partners, Besh and Octavio Mantilla, is settled in court.

On February 6, Lamelle said no, ruling that there wasn’t enough evidence to convince him the Shaya name should be removed from the restaurant. Both sides agree that the restaurant’s operating agreement, drawn up before Shaya opened in 2015, did not assign name ownership to either party.

“Chefs often don’t understand that just because it’s their name, image and likeness — things that are intrinsically connected to their being — doesn’t mean that they will always have full control over the use of it,” says restaurant lawyer Jasmine Moy, who has represented restaurants and chefs in the hospitality space for six years.

Even well-respected chefs get the short end of the stick. According to Shaya’s attorney Michael Riess, the chef that earned the Besh Group national acclaim has been left with nothing. ”They took his heritage, his name, his recipes, his background, his mom’s recipes, his grandmother’s recipes, and they say ‘sorry,’ kick him to the curb, you’re out, you can’t use your name,” Riess said during court arguments. “If there ever is a case that screams for trademark infringement, your honor, with all due respect, this is the one.”

It seems terribly unfair for a chef to lose his name, but that doesn’t mean it’s not legal. And naming rights are a common casualty when restaurant partnerships turn sour.

In 2010, Laurent Tourondel battled with Esquared Hospitality LLC, the restaurant holding company owned by Jimmy Haber, over rights to the name Bistro Laurent Tourondel (or “BLT”). It took an ugly, nine-month legal battle for Tourondel to gain the right to use the name BLT again. In 2017, vegan chef Chloe Coscarelli, who co-founded the fast-casual concept By Chloe with Samantha Wasser, lost the rights to her name after an arbitrator found sufficient grounds for “gross negligence” on Coscarelli’s involvement with her business, also owned by Esquared Hospitality.

The celebrity chef David Burke’s former partner Jeffrey Citron continues to operate David Burke at Bloomingdale’s, David Burke Kitchen in New York City, David Burke Prime at Foxwoods Resort in Connecticut, and Burke in the Box at McCarren International Airport Las Vegas, without the chef’s involvement. The trademarked name will revert to Burke, but only at the time those leases end. Burke has since moved on in a deal with Esquared Hospitality, but is still in litigation with Citron.

Finally, there’s the curious case of “The Chef with No Name,” referring to Dallas chef Kent Rathbun, who signed over the rights to his name, image, and likeness for restaurant-related marketing to his then-business partner Bill Hyde Jr. in 2009. The partners launched H2R Restaurant Concepts in 2007, but when Rathbun severed ties with his namesake restaurant group in 2016, he also had to walk away from his own name. In response, the chef adopted a rather snarky moniker: the Chef With No Name. He thought it was cute — but a judge didn’t, and signed a temporary restraining order barring him from using that phrase, too, since it was seen as sullying the original trademarks and garnering sympathy at the expense of H2R and its restaurants.

These messy court battles beg one critical question: How can a chef avoid litigation and protect her name? The easiest solution, according to legal experts, is a relatively simple one: “Don’t put your name on your restaurant,” says Moy. “Get creative and think of something else.”

Restaurant branding lawyer Sheila Fox Morrison, a partner with Davis Wright Tremaine LLP, agrees. She says she often pleads with clients not to use their name because of the risks involved. One compromise she often suggests: To use a more generic restaurant name and add on “by Chef X,” which makes it easy to sever the chef’s name from the brand in the event of a conflict.

David Burke’s newest restaurant with Jimmy Haber’s Esquared Hospitality is named Tavern 62 by David Burke; a testament to a lesson learned.

The reality is that chefs and owners want to use the reputation and recognition of a chef’s name and brand to lure in customers. If that’s the case, the best way for a chef to protect herself is with a series of well-written, well-vetted legal documents — an operating agreement that gives her either a controlling interest or controlling vote in the operating company, and/or a very good license agreement.

“If there’s one takeaway from the Shaya ruling, it’s that having the right documents from the get-go are of the utmost importance,” says Moy. “It’s not enough to have an operating agreement; a chef needs to have to have a good one. They need to choose their counsel wisely.”

Moy says that the concept of a controlling interest doesn’t necessarily mean a chef has put in the most money, it means they’ve been given decision-making authority. “If they sign an agreement to open a restaurant and attach their name to that restaurant, then they must have the final say in how that restaurant works and operates. If they don’t, they should not put their name on the deal without having a license that allows them to withdraw their name from the project once they’re gone,” she says.

But these sorts of well-crafted deals are hard to negotiate because many chefs come to the table with lots of talent but little money or leverage. “Often these situations start out with up-and-coming chefs looking for money, which makes them almost too willing to sign anything to get that money and open the restaurant of their dreams,” says Morrison.

“The problem is that chefs don’t have the money for competent counsel,” says Milton Springut, a lawyer who specializes in protection of intellectual property in the hospitality industry. “And they are given agreements that are weighted in favor of the party with the money.”

When things fall apart, the parties are left with what they signed at the beginning of the relationship. In many cases that’s a dense boilerplate contract written in complicated and sometimes meaningless legalese: “You hereby assign to the Released Parties any and all rights you may have in and/or to any and all use of your Persona hereunder, worldwide... You hereby waive any right that you may have to inspect and/or approve any use of your Persona hereunder...” Those boilerplate terms favor the restaurateur — not the chef.

“These agreements invariably say, ‘everything [the chef] creates for the restaurant is owned by the company, and if the chef leaves, all the stuff they’ve created is owned by the company,’” Moy says. “And that can include their individual name if they put it on the restaurant.” Once a name is on the restaurant, it is an asset of the company; it doesn’t belong to its namesake anymore. And good luck trying to get it back.

But what if a chef has trademarked her name? Does that make a difference? It can, and that adds yet another wrinkle. A name can be trademarked, but not in the abstract; in other words, an entity cannot trademark something without using it. It’s not like a website domain name that can be purchased and parked for an indefinite amount of time. It must be used in commerce to be valid. This means most chefs come to the table without a trademark attached to their name. Once they enter into an agreement to open a restaurant, the operating company will often file for trademark protection of the name, which adds to the presumption that the restaurant owns the name.

That said, a chef could be the one to file for the trademark in anticipation of the restaurant opening. In this case, she would own the trademark and could license it to the restaurant group. Here again, the issue of leverage comes into play. “The problem is that most monied partners will not sign an agreement that allows that asset, the name of the restaurant, to be outside of the business,” says Morrison. “As a practical matter, there is no way that an investor will agree to it, not unless they are a very prominent chef with a certain level of reputation.”

In the event the monied partners do agree to license a chef’s trademarked name, the chef should attach conditions to the license. They can specify that the license will be revoked if, for example, the food or ingredients become substandard, or if the operating partners behave badly, or if the chef is fired without cause. Such an agreement may sound ironclad, but Moy says even in this case, where the conditions of the license agreement are spelled out, a chef might still end up in court fighting for her name.

“They can hang the right to use their name on all of these conditions relating to quality, image, and reputation,” Moy says. “But the problem is those conditions are very subjective — how bad was the food? Was it bad enough to revoke a license? — which makes them ripe for litigation.”

Morrison hopes that these conflicts serve as a cautionary tale for chefs embarking on new business ventures. She implores chefs to find legal counsel and understand the terms of what they are signing. “Not knowing the law is not an excuse for being a victim,” she says.

Then again, all the knowledge and counsel in the world may just not be enough. Deals go south, relationships sour, and the cost may be a chef’s name. Might be best to just keep it off the door.

Andrea Strong, founder of the pioneering food blog the Strong Buzz, has been writing about restaurants and food for the past 18 years.
Michelle Kondrich is an illustrator, animator, and podcaster living in Maryland.
Editor: Daniela Galarza