Intellectual property in the food industry

August 2019 | EXPERT BRIEFING | INTELLECTUAL PROPERTY

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For the food industry, it is no longer what we eat, how we eat and how it is made – it is also the scientific and related technologies surrounding our food. If you want to protect something, or to stop someone from doing the same thing that you are doing in your entrepreneurial food venture, the only way to do that in the US and abroad is through intellectual property law. An intellectual property lawyer can help you ensure that no one has invented it before you, branded it in a similar way to your or created it before you did.

Patents

If you make something that is both novel and non-obvious, in other words, sufficiently inventive, compared to what is already in the marketplace, you can register your idea as an invention with the US Patent and Trademark Office (USPTO), through a patent application filing.

The process to file a patent takes about three years and begins with a search of a worldwide database to figure out what exactly is protectable about your idea. Aside from explaining the basics of IP law, a patent attorney will help you by drafting the proper documents to prove your idea is patent-worthy. Being awarded a patent grants you the sole right to exclude someone else from making, using or selling your invention. This right last for 20 years from the day you file and is not renewable.

Trademark or branding

Another thing to think about with food is branding. Today, branding is equally as important as the product itself, and this is especially true for food companies. In the world of marketing, the term ‘brand’ is broad. But in IP, it is defined as “a symbol, word, or words legally registered or established by use as representing a company or product”. This is called a trademark.

Like a patent, trademarks are only approved if no one has filed for the same brand or a confusingly similar brand as you. If they have, then you may need to add a logo which also should not be confusingly similar to another existing logo. Selling a different type of good or service under an already existing name may be permissible, but the original trademark holder may believe that consumers could confuse the two products, and they likely will not be okay with that possibility. Some golden rules, of course, are steering clear of generic and descriptive words. Creating a food brand should be something where the consumer must ask and think about a company’s brand and how it actually relates to the food product or service it is trying to sell. It should be a word that has a suggestive meaning or an arbitrary meaning to the actual product or service you are providing in the food industry. Creating a word or brand is perhaps the best way to proceed when creating a food trademark.

So, always think about how to make your brand distinct. It is not just good for marketing; it is the safest way to achieve a federal US trademark. This right lasts for 10 years and is renewable for 10-year periods in perpetuity, if you continue to use it for the same goods and services.

In the food industry, trademark and branding are everything, so not protecting them can be very dangerous.

Copyright

The last type of IP property is copyright, which protects any sort of creative work that is both original and in a fixed medium.

The toughest part of securing a copyright is proving originality, which is sometimes contested by other creators who may believe they were actually the first one to create whatever you believe you created first. This can quickly become complicated. Thus, registering your creation with the copyright office first is a must. With a copyright, you are simply registering your work without much investigation by the copyright office. If your copyright registration holds up against scrutiny from others as being original, then it will last the creator’s lifetime, plus 70 years.

In the food industry, recipes are not protectable by copyright, but the creative content your food company generates – such as website content, marketing content, blogs, original artwork and design – is. This fact is often overlooked.

Trade secrets

Another popular form of federal IP protection in food is trade secret protection. A trade secret can be a formula, practice, recipe, process, design, instrument, pattern or compilation of information, which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. It is often a food company’s confidential or classified information. If you can keep it a secret and treat it as such to the world, and internally with processes and non-disclosure agreements, then if someone should misappropriate or steal it from you, the court will protect it as a secret as you intended. Your secret does not expire like a patent and there are no federal registration costs. Of course, there are costs associate with processes and procedures for ensuring what you have is indeed a secret and protected as such.

In the food industry, unconventional and non-obvious ingredients, cooking practices and methods are indeed novel and patentable, especially if they create unexpected results and discoveries never seen. The scientific, physiological and physical aspects of the food you create as a result of existing ingredients, or unexpected and not-so-obvious ingredients, can lead to patents that you can protect and enable your company to monetise. Patents on food-related technologies are all the rage, as are new cooking techniques using new tools and technology, new formulations, or even discoveries as to alternative food sources and materials. Similarly, the design of the food itself or its packaging can be protected by design patent in the US, and if the brand or trademark is on the actual design or shape of the food, then that too can be protected under trade dress and trademark protection.

Where branding is integral to digital marketing and internet traffic, it is essential that a trademark is cleared for use before actually using it. Lastly, copyright protection is often overlooked in the world of food and beverage, but it is becoming more important as marketing becomes increasingly content-centric. Food entrepreneurs must understand the consequences of their marketing efforts and actions in copyright when using social media sites and posting public content on some of the more famous sites used to increase public traction and market acceptance. Understanding the value of copyright in what you create and how you publish it may determine your ability to control and monetise your copyright creations. The way food is consumed, created and protected is undergoing a revolution and it is imperative that the current regulatory scheme of intellectual property rights is one that is adhered to by food entrepreneurs everywhere.

David Postolski is a partner at Gearhart Law LLC. He can be contacted on +1 (646) 644 2959 or by email: david@gearhartlaw.com.

David Postolski

Gearhart Law LLC