Food for thought - your intellectual property is worth protecting

Blog published by Howes Percival LLP, under Legal / IP

In the food and beverage industry, you may think that your products speak for themselves. You have dedicated your time to finding the perfect taste, look and smell for the customer, so why would you need to protect something as intangible as intellectual property?

Customers associate their experience of your products or services with your brand (the name, logo and other features that they associate with your products and services) and you have expended time and energy in ensuring that your products are at the forefront of the market.

Reputation is key to building a strong brand, and growing your business. You may have developed a unique product or process which customers are desperate to try. If you have a great reputation customers will return, they will recommend you to others, and new customers will want to buy from you.

However, you may also gain attention from competitors, or those looking to enter the market, with the risk that some may try to take advantage of your reputation either by copying your brand or using a name which is very similar to it or by producing similar goods and piggy-backing on your years of research and development.

If a copy-cat enters the market, customers may well be confused and buy from the copy-cat either thinking that they are buying from you, or that they are buying from somebody connected with you. In addition to the financial damage of those lost sales, if the copy-cat offers poor quality products or services to customers, your reputation will be damaged if customers associate them with you.

The biggest brands in the food and drink sector protect their brands with trade mark registrations, but this is not exclusive to the big players. Registration enables businesses to protect their brand, add value to their business and maximise their competitive position.

Trade mark protection will put you in the strongest position if a copy-cat enters the same market using an identical or similar name or brand. However, even without a trademark, the law of passing off can provide protection for the goodwill you have built in a brand from copy-cats.

As well as protecting what you print on your products, you can also protect the unique design of the product itself as a registered design or, in some cases, a trade mark. Customers may be using the shape of the product or the packaging to identify your product on the shelves, before they appreciate the branding or take that first bite. Therefore, copy-cats in the market can create an additional level of confusion by copying the design of your product or packaging. By registering your design, you can prevent others from using one that is similar or identical.

Aside from your brand, you may have other intellectual property in your business which needs to be protected.

Your recipes, ingredients and/or methods may be protected as trade secrets. If, for instance, it is not possible to ascertain a recipe from the final product and it is not disclosed elsewhere, it will be confidential to you. It is therefore extremely important that you have taken sufficient steps to ensure the information remains a secret. Big companies like Coca-Cola have protected their recipe as a closely guarded trade secret for over 100 years. This may include ensuring agreements are in place with employees and contractors to make sure that the trade secret remains protected. However, once the information enters the public domain, the protection will cease.

If your recipe or process is especially inventive, one of the strongest forms of protection would be to obtain a patent. Patent protection, although subject to some hefty barriers, will prevent anyone from copying your product or process for as long as the patent lasts. As growing numbers of innovative meat substitutes, plant based products and environmentally friendly food packaging enter the market, there is growing scope for the patent regime to apply to the food and drink sector.

It should also be noted that whilst protection of your intellectual property will provide you with a strong position to challenge copy-cats, the creation of formal intellectual property rights (such as trade marks, registered designs and patents) will give you a tangible asset in your business. Not only will this create value, but it will allow you to more easily license your rights to third parties to manufacture or sell, and will make your business more attractive to potential purchasers.

An additional consideration in the food and drink industry is the existence of geographical indication schemes. If your product has a geographical connection or is made using traditional methods, geographical indication protection will protect the product name from being misused or copied by third parties who do not live up to the same high standards. Without this protection, the unique characteristics of your product would be at risk of being lost. For example, Howes Percival acted in the successful application for "Protected Geographical Indication" status for the Melton Mowbray Pork Pie.

The specialist Intellectual Property team at Howes Percival are experienced in advising clients in the food and beverage sector on all aspects of brand and intellectual property protection.

If you would like to get in touch in relation to any of the issues raised in this article or any other Intellectual Property matters please email jenna.bruce@howespercival.com, james.howarth@howespercival.com or call us on 01604 230400.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

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