Snack foods, packaging and bottling equipment, recipes and restaurants are all part of one of the world’s largest industries. The food sector plays an essential role in the economies of many countries, accounting for multi million-dollar revenues every year.  The ongoing quest to add value and to meet evolving consumer demands drives great innovation in the food and beverage industry. For example, a new detox beverage, the process to create it or the technology to boost its shelf life may propel a business to success. The exclusive rights associated with intellectual property (IP), which may be applicable to many aspects of the industry, from ingredients, recipes, and manufacturing, to branding, labeling and marketing of finished goods and services, play an important role in obtaining and maintaining a competitive advantage. Parties should develop a strategic approach to nurture and protect their IP.  Attorneys experienced in all aspects of IP, both domestically and internationally, are valuable partners in developing and implementing an effective worldwide strategy related to these valuable IP rights.

Elements of food industry goods or services that may be protected by IP include the following:

FUNCTION, CONSTRUCTION, DESIGN AND KNOW HOW

In the food and beverage industry, the potential for various forms of patent or related protection may sometimes be overlooked.  Utility patent protection may be available for improvement and innovation in food science and technology, including a process or software, machine, manufactured product, or chemical or biological composition.  For instance, you can seek utility patent protection for improvements in kitchen appliances or utensils, manufacturing or packaging equipment.  New and innovative packaging constructions themselves may be patented as articles of manufacture.  Even new product formulations or recipes have the potential for protection as processes for producing the end food product. Moreover, end products themselves may be protectable by exhibiting improved and unexpected results or qualities, such as longer shelf life or surprising nutritional benefits. 

Design protection, which is sometimes the subject of patent law, may be available for an ornamental design for a useful article, such as an innovative container or bottle ornamentation or shape. A unique shape of a food product itself, such as a biscuit or a confectionary item or even the layout of foods in a chef’s plating, may possibly qualify for design protection.  Whether or not a design is protectable under patent law, other forms of protection may be available, including copyright, trade dress, and design-specific law.

New plant varieties may be protected via patents or other forms of protection, depending in part on the particular country of interest.  A plant patent in the United States can provide protection for an asexually reproduced new plant, such as a new tomato or cucumber variety. Plant patent holders have the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts. The U.S. Department of Agriculture separately grants plant variety protection that applies to sexually reproduced plants for those plant varieties that are new, distinct, uniform, and stable.

As a potential alternative to utility patents, trade secrets allow for the protection of information maintained confidentially for commercial benefit over competitors who do not possess the information and can include a formula, method, technique or process.  As protection arises from the maintenance of secrecy,  the holder of a trade secret must take steps to ensure that the information will not be publicly disclosed, typically by limiting access to the information only to essential employees and collaborators who agree to non-disclosure to others not similarly bound.  Some well-known examples of trade secrets include: Coca-Cola’s cola formula, KFC’s fried chicken batter recipe, and Krispy Kreme’s doughnut manufacturing process.  Unlike patents, trade secrets do not require any registration and continue indefinitely until public disclosure, but do not prevent others from independent discovery or reverse engineering.  The disclosure requirements for a patent, on the other hand, may facilitate the ability of  others to design around and thus avoid the patent on the claimed invention. The decision of whether to protect something as a trade secret or a patent may therefore depend on the ability or inability of others to discover or work around the innovation.

BRANDING, REPUTATION AND STANDARDS

A successful and prosperous business in the food and beverage industry requires branding, including the careful selection, development, use, and enforcement of trademarks.  Trademarks are indicia symbolizing your business as the source of its goods or services and their quality and distinguishing them from those of third parties.  Trademarks serve to protect the owner from third party attempts, whether intentional or not, to imitate or take advantage of the goodwill and reputation of the brand, and are relied upon by consumers to avoid being misled or deceived into purchasing goods or services of a potentially differing quality or nature from another provider.  They exist in a variety of forms, including, within the food and beverage industry, soft drink names or logos, restaurant slogans or taglines, candy bar product or packaging configurations, beverage container shapes, and cafe color schemes.  The various forms can be protected separately or sometimes in combination.  Trademarks are usually registered with governmental agencies in order to secure nationwide or regional rights.  In some countries, more limited rights are obtained from use in the absence of registration.  The internationally adopted Nice Agreement provides a classification system that attempts to group together items of a similar nature. This results in trademark registrations for food and beverage products and services often covering multiple categories or so-called classes.  For example, apart from food chemicals (Class 1), nutritional supplements (Class 5), and kitchen utensils (Class 21) or cooking equipment (Class 11), food and beverage products fall in five classes (Classes 29 - 33), often depending on their principal ingredients or purpose. Since government agencies usually charge fees on a per class basis or require separate applications for each single class of goods or services, obtaining the appropriate scope of protection for a food or beverage-related trademark may be more complex than in other industries.

Trademarks are one of several available means, depending on the particular country or region of interest, for protecting the association made by consumers between the quality or nature of an agricultural product, foodstuff, wine or spirit and its geographic origin and/or the standards under which it was made or grown. For example, some countries recognize that “prosciutto di Parma” can only come from the Parma region of Italy, and sparkling wine from anywhere other than Champagne, France, cannot be called “Champagne” (with limited exceptions).  Non-geographic names can sometimes also be protected if they are linked to a particular place.  For example, Feta cheese is so closely associated with Greece that it is identified by the European Union as an inherently Greek product.  In the United States, you may secure and maintain a so-called geographic indication through use of the name or a corresponding logo as a mark in U.S. commerce, either through non-registered use or through registration as a trademark that has acquired distinctiveness, or, more commonly, as a special type of group trademark (i.e., a collective or certification trademark; e.g. Idaho Potatoes). Many countries also provide means of additional protection for wines, spirits and unique qualities of the environment in which the grapes or other raw ingredients are grown (i.e., terroir).  In the United States, protection is afforded to limit the use of “American Viticultural Area” (AVA) designations, such as “Russian River Valley” in California or “Martha’s Vineyard” in Massachusetts, to wines made from grapes grown in the AVA. The holder of a geographic indication right may prevent its use by a third party whose product does not conform to the applicable standards. For example, in the United States, European Union, and India, where the Darjeeling geographic indication is protected, the owner can exclude use of the term “Darjeeling” for tea not grown and produced in compliance with the relevant standards. 

BEING FOUND ONLINE

Whether your activity is to produce agricultural goods, breed livestock, manufacture, package or distribute food and beverage goods, or offer restaurant services, you must ensure that your customers can readily find and share accurate and useful information about your products or services on the internet.  While this is typically accomplished by registering and using one or more domain names, establishing social media profiles, and developing an overall internet presence, it is essential to recognize the important connection between online uses of your business, product, or service name and your trademarks.  The  registration, management, and monitoring of domain names, as well as the establishment of enforcement policies and strategies are vital to effective maintenance of the trademark rights that distinguish and empower your business.  Proactive registration of domain names on appropriate top levels (ie, .com, .wine, .eu, etc) is inexpensive when compared to the costs of reactively acquiring domains from another party through purchase or legal proceedings.  With the launch of .keyword top level domains, there is a broader selection of available food-related domains than ever before, including the ability to register names on new top level domains such as .bar, .bio, .beer, .cafe, .catering, .club, .coffee, .cooking, .delivery, .diet, .eat, .farm, .kitchen, .menu, .organic, .pizza, .pub, .recipes, .rest, .restaurant, .vodka, .wine, and .food.

EXPRESSIVE WORKS

The original content of cookbooks, food blogs, pictures, advertisements, software and web interfaces and codes, along with video and audio recordings are examples of protectable works under copyright law because they are sufficiently expressive.  On the other hand, a mere list of ingredients and the method or procedure of making a dish is generally not eligible for copyright protection, even if it may be the subject of a patent or trade secret. 

Depending on the circumstances, the proprietor of a copyrightable work may be the author, his/her employer, or another party.  The proprietor is afforded exclusive rights in the work upon its creation.  However, registration may be required to enforce copyright rights.  In the United States, registration establishes, among other things, a legal presumption of the copyright’s validity, allows recordation with U.S. Customs for seizure of imported pirated items, and enables takedown of unauthorized copies posted on some internet sites.