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Guest Blog - Brand protection: More than a just a trade mark

Beyond trade marks, protecting intellectual property (IP) is not necessarily the first thing that comes to mind when one has developed a new food or beverage product. Why is this the case, especially when so many other industries have readily adopted and employed IP protection to their commercial advantage?  CMS’ Gillian McCulloch and Victoria Bayly talk about some of the common misconceptions surrounding intellectual property protection and opportunities food and drink manufacturers should be aware of.

There are three common misconceptions regarding IP and brand protection.

  • Trade mark protection equals brand protection. Beyond logos, food and drink brands ooze all sorts of creative assets featuring colour palettes, shapes, graphics, designs and packaging. Manufacturers should seek to protect all aspects of its brand identity. Some tips on this are set out below.

  • Food and drink manufacturing is not a patentable industry. New food and drink products are the result of complex and technical processes. By failing to register patents and design rights, innovations of Scottish laboratories and factories are vulnerable to exploitation by competitors.

  • IP protection is only for big corporates. We are seeing more and more food and drink start-ups in the Scottish market with extremely innovative products. Whatever the size of your business, securing IP protection in developmental stages can help attract and protect investment and distinguish your products from competitors.

So, what practical steps can you take to strengthen your brand’s IP protection?

A great product is much more than just a trade mark. Design rights can protect the overall look and feel of a product. A design right arises automatically upon creation of a product, but will only cover the functional shape and configuration. A registered design, however, will protect a product’s overall aesthetic. A whisky distiller may develop an unusual bottle with intricate carvings or an unorthodox shape, giving the product a unique feel. Yet, if the design remains unregistered the distiller would need to prove that an infringing copycat had its product in mind. If the design is registered, the distiller only needs to demonstrate the infringing product creates the same impression on the user, even if it was created independently and without copying – a much lower hurdle!

The owner of a patent can take action against anyone using their invention without permission. Patents present a great opportunity to capture the value of innovative processes in food and drink. It is untrue that recipes are not patentable. In fact, 15 different patents for Quorn products have been registered protecting Quorn’s unique composition and health benefits. Processes offering improved shelf life, flavouring and packaging also may be worthy of patent protection. Applying for a patent keeps your competitors on their toes and “patent pending” may help increase the marketability of your products.

Lastly, trade secrets can be used to safeguard food and drink IP – it’s widely known that Irn Bru is Scotland’s most closely guarded recipe. Although this is a powerful form of protection (and also carries marketing potential), a brand must be able to demonstrate that it has taken reasonable steps to protect the secret, such as implementing technical measures to prevent leaks and ensuring adequate confidentiality agreements are in place with relevant parties.

Ensuring that your brand and products have sufficient IP protection requires a lot more than registering a trade mark. A full suite of safeguards are available for the savvy manufacturer, and should be utilised in order to confidently take products to market and lessen the risk of copying. In the highly competitive food and drink market, adequate IP protection is crucial.

If you would like to discuss any of the areas covered in this article please contact:

 

Gillian McCulloch
Associate
CMS Glasgow Office
E: gillian.mcculloch@cms-cmno.com
T: +44 141 304 6156

CMS Law - Scotland

Victoria Bayly
Associate
CMS Glasgow Office
E: victoria.bayly@cms-cmno.com
T: +44 141 304 6017

CMS Law - Scotland