Protecting your IP – a recipe for success

Intellectual property (IP) rights play a pivotal role in the food & drink sector. Brand owners can benefit from wide-ranging IP protection in order to have peace of mind when investing time, money and creative energy to develop a brand or product. IP rights can apply to many aspects of the industry, from initial recipes to branding and marketing. The competitive nature of the food & drink industry means that IP protection is of paramount importance; it is imperative for businesses to assess what IP rights they may have and take the necessary steps to protect them. This article looks at different types of IP protection available for businesses operating in the food & drink sector:

Trade Marks

Trade Marks are signs or marks that can attach to food & drink products and can be used to differentiate your products from those of your competitors. Many memorable and successful brands are recognised by their symbols or logos (e.g., the McDonalds “M”) but trade marks can also apply to slogans and taglines too (e.g., KitKat’s “have a break”. Trade marks do not have to have registered, but there are considerable advantages to doing so. As the differences between products in terms of quality and price becomes less apparent, the importance of brand recognition has increased and is now one of the most important buying cues that consumers look for.

A trade mark registration can last indefinitely (provided renewal takes place every 10 years), therefore it can be useful a useful asset to enforce against competitors or other third parties creating similar products. There is also a financial incentive, as trade mark owners can have the option to licence their IP to third-parties for a fee. If a trade mark is not registered but has built up a reputation in the marketplace, the brand owner may be able to rely on the law of ‘passing off’ to prevent IP infringement, but the threshold for proof is high and taking action can be both costly and time consuming.

There can also be collective marks which are indications of membership e.g., “Made in Britian” – the official mark for British manufacturing, or certification marks, which can be added to products to guarantee certain characteristics e.g., “Fairtrade”.

Geographical Indications (GI’s)

GI’s can offer protection to food & drink brands that create specific products whose qualities are linked to a region or area of production. Examples may include Stilton blue cheese or Irish cream. There are three designations of GI:

• Protected Designation of Origin (PDO) – meaning that a product must have a reputation, characteristic or quality as a result of its production and preparation e.g. Champagne
• Protected Geographical Indication (PGI) – by contrast, a PGI focusses more on the relationship between the region and the product, where the reputation, characteristic or quality is directly attributable to its geographical region and gives it unique properties e.g., Irish Whiskey or Welsh lamb
• Traditional Speciality Guaranteed (TSG) – this must be a product with traditional characteristics in terms of its ingredients or production methods. Differing from PDO and PGI, the link to a specific geographical area does not certify the product, rather, it must have a ‘specific character’ and the production methods must be ‘traditional’ ie Jamon Serrano or Pizza Napoletana.

Registered designs

Registering a design can be a powerful tool in protecting the look of a brand’s packaging and preventing others from making, using or selling similar products and/or designs. In a similar way to trade marks, designs do not need to be registered, however there are a number of advantages to doing so. A registered design can give the rights holder wider protection and can cover both 2D or 3D products for up to 25 years.

Patents

Patent protection is often considered by brands if it is possible to derive a recipe or composition from the product itself. In order for a patent to be granted, it is a requirement to demonstrate that the invention is sufficiently novel and provides a non-obvious solution – e.g., a drink product having an improved taste whilst reducing the sugar content. Patent protection is often seen in the food science and technology area covering things like chemical compositions or machinery. If successfully granted, no one can use the patented product or work the invention without the patent holder’s permission for up to 20 years.

Trade secrets

Trade secrets is thought of by many as one of the most important forms of IP protection for food & drink businesses. If an invention is not ‘patentable’, it may still be afford protection indefinitely under common law by virtue of being a trade secret. Some of the most well-known trade secrets include Coca Cola’s recipe, or KFC’s blend of herbs and spices. However, trade secrets do not provide any protection in the event another company legitimately produces the same product, uses the same manufacturing process, or successfully reverse engineers a product. Advances in chemical analysis nowadays can make reverse engineering more achievable, thus limiting the effectiveness of trade secrets when it comes to IP protection.

Takeaways

1. Research is key. Make sure to conduct thorough trade mark clearance searches prior to launching a new brand or product. Consideration should also be given to whether there could be any negative connotations in overseas markets as well as whether there is any potential GI status
2. Know your rights. If you choose to engage subcontractors to create designs/packaging, ensure the contracts are accurate when it comes to IP assignment and protection. Just because you pay someone to design something, doesn’t automatically mean you own the copyright to that design! Also, make sure to include an IP clause in employment contracts to prevent employee issues
3. Be vigilant. Routinely check competitor activity in the market place, particularly in terms of new product development. Dealing with potential infringement as soon as possible is vital; in the event a claim goes to litigation, the court will be reluctant to find in your favour if there have been any unexplained delays
4. Next steps. Conduct regular IP audits moving forward to ensure your brand has appropriate and up to date IP protection. Consistent checks and registrations can enhance your brand equity and brand loyalty.

For more information and legal advice on how best to protect your IP rights, please get in touch.