Intellectual property: A key ingredient for your Food and Drink business (Part 1)

Food & Drink is not only one of the fastest moving sectors, it is also one of the most competitive. As soon as you bring a new product to market, you risk being copied or even counterfeited as less scrupulous manufacturers look to capitalise on your success and eat into your market share.

Your success therefore will be closely linked to how well you protect every aspect of your innovations. If you don’t protect your name, your logo, your look and your recipe at the very start of your products’ life-cycles, you could be giving your competitors the opportunity to steal a march on you. If they take that opportunity, it will not only impact on your future sales, it could very well prevent you from protecting or even using your intellectual property (IP) in the future.

We appreciate that developing and implementing a robust IP strategy has important cost implications. However, developing and implementing an explicit strategy that deals with the many IP-related risks frequently faced by businesses will undoubtedly repay itself in the longer term.

The full potential of IP is not always harnessed in the F&D sector so, in this two-part series, we’re going to look at the different forms of intellectual property rights that you as a Food & Drink manufacturer should consider and explain exactly why protection of those IP rights is vital. We’ll start with the ‘visible’ rights; trade marks for your brand and designs for the appearance of your product and packaging.

Protecting your brand

Your trade mark is the external embodiment of your brand. It’s what distinguishes your identity from everyone else in the market, the one thing that says it’s definitely you when consumers see or read it.

Your trade mark could be a word (Mars), a phrase (“Have a break, have a Kit-Kat”), a symbol (the M&M characters), a logo (Coca-Cola’s instantly recognisable script) or even a colour (the turquoise Heinz uses for its baked bean tins).

As such, your trade mark will play a crucial role when it comes to influencing the purchasing decisions you want your target market to make and establishing the brand loyalty you’ll need to build a successful long-term business.

However, your trade mark is not only for your customers.

Protecting your mark with a trade mark registration is also critical from a commercial point of view. Usually, the mere existence of a trade mark registration is sufficient to deter competitors from adopting the same mark or a similar mark (with the aim of piggy-backing on your brand recognition and success). In addition, a registered trade mark is an asset of the business which can be sold, licensed and used as security and the value added to a business by a registered trade mark can help attract and protect investment. It can be very difficult to stop competitors from using a brand if it is not protected by a trade mark registration.

When it comes to choosing your mark, our advice, entirely from a legal perspective, would be to:

• Choose something that is distinctive rather than descriptive or generic

• Avoid surnames or geographical names

• Avoid words, images or colours that are likely to confuse potential buyers (for example, because they are too close to other food and drink brands or associated with well-known brands in other sectors)

• Avoid using acronyms and numbers

• Have a rough idea of the font, presentation and colour you’d like to use

And once you have your idea, ask a trade mark attorney for advice.

They will be able to perform a series of searches to help ascertain other third party rights and assess the risks associated with adopting a particular trade mark. Again, this may seem like an avoidable additional cost but if your trade mark is found to infringe an existing trade mark registration, the costs of selecting a different mark, rebranding and rebuilding your brand would undoubtedly be significantly higher.

Protecting your product and your packaging

In the Food & Drink industry, how your product or your packaging looks will be instrumental in attracting your customer-base. As long as the look of your product (think Toblerone) or your packaging (think of the classic Coke bottle) is new and has a different overall appearance from existing designs, you should be able to protect the look of your product or packaging using design right registrations.

A registered design right not only prevents other companies from using designs that look the same as the registered design, but it’ll also prevent competitors from using any designs that have the same overall appearance. This means that if a competitor was to make subtle changes to your design for their own benefit that do not affect the overall appearance, they would still be infringing your rights which would give you grounds to take preventative action. A design registration can be directed to lines, contours, colours, shape, texture and/or materials of a product and packaging.

If you feel your product or packaging could benefit from the protection of registered design rights, here are a few questions you should ask yourself:

1. Is the look of the product or packaging new? You need to file for a registered design before your product reaches the market or your application could be invalid.

2. Does the product or packaging have an overall look that is different from existing designs? Your new design must give a different overall visual impression to anything else on the market in order for the registered design right to be valid.

3. Does anything similar already exist? You can search the WIPO (World Intellectual Property Organisation) Design Database but it may also be worth double-checking by using the image searching options offered by Google, Yahoo, Pinterest or Getty Images.

Once you have those answers, again the best course of action would be to discuss your findings and your objectives with an experienced attorney. They will be able to perform their own searches and confirm whether or not you are able to obtain a valid registered design and, if you are, they’ll explain the best way to do it.

In the second part of this series we will look at the other intellectual property rights (patents, copyright and trade secrets) you could use to protect the financial future of the foods and drinks you produce and the business you are working so hard to build.