The food and beverage (F&B) industry thrives on innovation. Whether it’s a new recipe, packaging design, or product name, every detail contributes to the overall success of a new product. However, with creativity comes the need for protection.
Intellectual property (IP) in the F&B sector involves understanding, establishing, and protecting a variety of elements—production methods, recipes and ingredients, packaging, labels, product names, sometimes mascots or spokespeople, and even how these products appear in stores and advertisements.
The IP Journey of Food and Beverage Products
The food and beverage (F&B) industry thrives on innovation.
Catherine Cavella, ESQ.
The food and beverage (F&B) industry thrives on innovation. Whether it’s a new recipe, packaging design, or product name, every detail contributes to the overall success of a new product. However, with creativity comes the need for protection.
Intellectual property (IP) in the F&B sector involves understanding, establishing, and protecting a variety of elements—production methods, recipes and ingredients, packaging, labels, product names, sometimes mascots or spokespeople, and even how these products appear in stores and advertisements. Launching a new product or refreshing an old one requires careful consideration of the main forms of IP protection available. Working with an experienced intellectual property attorney can help F&B companies power their ideas and keep competitors from infringing on their hard work.
Trademark Considerations for Food and Beverage Companies and Products
In the U.S. food and beverage industry, trademarks play an important role in distinguishing products from competitors or even outside entities (just ask PepsiCo about its lost battle over the Sierra Mist brand). Trademarks cover more than just logos; product names, company names, restaurant names, slogans, jingles, and even store designs can be trademarks. For example, the famous golden arches of McDonald’s are protected as several store and sign configuration marks, as several logos, and as stylized wordmarks, while the iconic “I’m Lovin’ It” slogan and the 5-note jingle enjoy trademark protection as well. Even Ronald McDonald and the other McDonald’s mascots and characters are registered trademarks. Packaging, like the Heinz ketchup bottle or Pringles cans, also can be trademarks. This level of brand protection is vital for businesses that want to create a memorable identity.
Increasingly, F&B companies are pushing the boundaries by attempting to trademark unconventional elements such as sounds, colors, and even scents. (Flavors are theoretically capable of serving as trademarks but not for food and beverages, because flavor is an inherently functional aspect of food and beverage and functional elements cannot serve as trademarks). While these types of trademarks are less commonly approved, they’re becoming more popular in the industry as companies seek to stand out from the competition. The key to trademark success lies in creating a unique identifier for the product—something that consumers will recognize instantly and associate with quality or brand promise. McDonald’s Corporation owns 285 active trademark registrations and 47 pending applications for registration, covering a wide range of word marks, logos, characters, packaging design, store design elements, sign design elements and sensory marks (such as its 5-note jingle).
For F&B companies, expanded trademark protection can be particularly useful when dealing with competitor brands that might imitate the look and feel of a product. A distinctive label or package design can help your customers recognize your product over your competitors’ , and trademark registration can help deter competitors from copying those distinctive elements and allow you to stop them if they do. By protecting these creative assets, companies can maintain a competitive edge in a crowded market.
Copyright Considerations for Food and Beverage Companies and Products
Copyright offers a different (and more limited) layer of protection, particularly for the creative aspects of food and beverage products. Product photographs, artwork on labels or marketing collateral, nonfunctional packaging design elements, TV commercials, and marketing materials can all be protected under copyright law provided they are sufficiently expressive.
Copyright protection technically applies as soon as a creative work is fixed in a tangible form, such as a drawing, photograph, or video. Once a photo or commercial is created, it’s automatically protected by copyright, but a copyright cannot be enforced unless it is registered with the U.S. Copyright Office, and early registration is required to obtain the power needed to shut infringers down without a drawn-out fight. Moreover, the Copyright Office is inclined not to recognize labels and other obviously commercial works as copyrightable works, so care must be taken in developing the strategy.
For F&B companies, trademarks are still going to be the best legal tools to protect their unique elements that set them apart from their competitors – that is the essential function of trademark law. But copyright might fill in the gaps here and there where needed.
Patent and Trade Secret Considerations for Food and Beverage Companies and Products
Patents in the food and beverage industry typically cover processes and packaging designs. Many companies seek patents for the processes behind their products. Impossible Foods, for example, holds a patent for its method of producing vegetarian burgers. Patents like these protect the innovations behind products, ensuring that no other company can legally replicate those methods without permission.
Beyond production methods, patents also protect ornamental designs, such as the unique shape of a beverage bottle or a candy bar (think Toblerone’s famous chocolate bar design). For emerging F&B companies, patents can be a crucial form of protection. If a new product’s design or manufacturing process is novel, obtaining a patent can keep competitors at bay and enhance the company’s market position. Businesses need to be aware of existing patents to avoid infringing on others’ rights, which could lead to costly litigation.
To protect recipes, formulas and ingredients, F&B companies must rely on trade secrets. Processes may be patented or protected as trade secrets but not both.
To benefit from trade secret protection, a F&B company must treat its secret recipes and ingredients as secrets – ensuring they are kept under lock and key and are not shared with anyone except on a “need to know” basis with nondisclosure agreements in place. If a company loses control of its trade secret and it becomes known, then the company can no longer enforce it and no longer “owns” it – a valuable asset simply disappears. Moreover, trade secrets can only be enforced against someone who steals them. So if a competitor independently figures out a F&B company’s secret recipe, then the trade secret cannot be enforced against them.
Therefore, F&B companies must be intentional and careful with their innovations to avoid losing the protection they wish to rely on.
Enforcing Your IP in the Food and Beverage Industry
Enforcement is a significant challenge in the food and beverage space. Knock-off brands often try to imitate flavors, designs, and product names to confuse consumers and shift their loyalty to a cheaper, lesser-quality product. These imitations can damage a brand’s reputation and lead to significant losses in sales. A creative trademark strategy working with the marketing department can give brands the tools they need to build customer loyalty and keep copycats from confusing their customers.
Working with IP Works Law can help F&B companies establish robust intellectual property protections and take swift action against infringers. Our firm ensures that your creative efforts remain yours and that imitators face consequences. Contact the experienced team at IP Works Law to POWER YOUR IDEAS® and maintain your competitive advantage in the always-evolving food and beverage industry.
Catherine Cavella
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