Protecting the IP of your food or drinks brand – is it worth it? 

Packaging and product design can have a significant impact on consumer recognition of a product or brand. The food and beverage sector is highly competitive, and one where consumers often select products based on their packaging or design. Protecting IP rights in the food and beverage sector has therefore become ever more valuable to put businesses in the strongest position to stand out from competitors.  

Trade marks  

The most obvious examples of trade marks are brand names and logos, but trade marks can also be utilised for protecting labels and packaging as well. For example, an owner of a drinks brand may wish to register the bottle label, or the beer pump clip as a trade mark. The main requirement for it to function as a trade mark is that the shape or label is capable of indicating as a badge of origin, and so simple shapes and designs will not be afforded protection.  However, 3D shapes such as the shape of the bottle, can be afforded trade mark protection if sufficiently distinctive enough and capable of distinguishing the goods (or services) of one business from those of other businesses. 

When diversifying into other commercial areas, protection can be sought for those new areas. For example, the “DIDDLY SQUAT FARM” trade mark (which is subject of Jeremy Clarkson’s TV series Clarkson’s Farm) is registered both as a word mark and a logo, covering goods from meat and poultry, to tote bags. 

Trade mark registrations are valuable assets to businesses as they can last indefinitely, provided the registrations are renewed every 10 years. Once a registration is secured, it can be a useful tool to enforce it against look-a-like products created by third parties. It is also worth bearing in mind that the registration can also be bought or commercialised through IP licensing (if an owner wishes to allow others to use the mark) or used as a security interest in financial transactions.    

Registered designs 

If the product itself is a unique shape, it may be worth considering registered design protection.   

In a case between M&S and Aldi, where M&S were successful in taking action against Aldi’s version of a snow globe gin bottle, demonstrated the potential power in a well thought out design registration, particularly in product design. By registering your design, you obtain exclusive rights to use it and can enforce your registration against third parties who may be commercialising a similar or identical design to yours. Registering your design grants you a legally enforceable right, allowing you to take action against anyone who infringes upon your design. This protection extends for up to 25 years, provided that you renew it every five years. 

A trade secret 

Other intellectual property to consider are trade secrets. Confidential information such as manufacturing processes or distribution methods can be protected by trade secrets. A trade secret can be any confidential business information which provides an organisation with a competitive edge. Examples include KFC’s original recipe chicken, and Coca Cola.  

Food for thought  

A strategic IP portfolio can provide business owners with the valuable tools to take action against third parties looking to use or register conflicting marks and to seek the appropriate remedies. Before launching a new product or brand, it is a good idea to conduct clearance searches to minimise the risk of running into a dispute that may take attention away from the launch of the new product. Birketts’ Trade Mark and Branding Team has expertise in liaising with clients to leverage their IP rights and can provide practical and strategic advice on how best to protect packaging and designs. If you wish to seek advice, please contact [email protected].