In today’s increasingly competitive food climate, it is more important than ever to protect the various intellectual property rights attaching to a brand. Therein is where the real value lies and is what distinguishes food and beverage businesses from the crowd. But what elements of a food brand and its products are in fact capable of intellectual property protection and how can this be achieved?
- Photographs: Culinary Artistic Creations?
Since imagery is often at the heart of a food brand’s marketing initiative, retaining control over the dissemination of these images and preventing unauthorised use is key. Whilst the photography of static food items might not immediately be associated with creative flair, provided an image constitutes the photographer’s own intellectual creation, the standard is fairly low in terms of originality. The concept of originality requires an element of skill, judgment and effort on the part of the creator. Lighting, angle, focus and framing are all relevant factors when it comes to judgment and skill. In short, if a photographer successfully puts his own unique stamp on an original photo, it is likely to attract copyright protection.
It is also worth noting that, where third parties are commissioned to undertake food photography (or any other work) for a business, the contractor will typically own all rights in their creation. This is in contrast to employees, whose work will generally belong to their employer. It is therefore vital to obtain a written assignment of intellectual property rights from commissioned contractors.
- Recipes: Lifeblood of the Brand
Signature recipes are likely to be crucial to the success of a high-end food business. They will also automatically be protected by copyright, provided they have been written down (or recorded in some other way) and are sufficiently original.
Since individual recipes are often developed from, or based on, pre-existing recipes, independent creation can be a barrier to copyright protection. That said, copyright does not require the whole work to be original. So, if a recipe is essentially a rehash of the classic British favourite shepherd’s pie, the chances of protection are slim. If, on the other hand, a certain amount of skill or labour has been invested in the development of a new recipe, the contribution is likely to be sufficiently original to qualify for protection. This ultimately prevents other brands from making or selling the dish.
- Novel and Inventive Elements
Some of the more obscure food compositions, production or cooking techniques and technological advances may even be worthy of patent protection, provided they involve a novel and innovative process. In view of the hefty costs involved though, patenting is not always an attractive or practical option for food producers.
If, however, a brand has the means and opportunity to secure a patent it should consider taking advantage of this. Patents give monopoly protection for 20 years and thus make life difficult for competitors who may wish to mimic the creation. It’s also vital not to publicise the invention before applying for a patent (through trade food shows, demonstrations or otherwise) as to do so risks losing the possibility of protection.
The name and ‘get up’ of a product is an extremely valuable commercial asset in its own right. Trademark protection can be critical to product recognition, deterring potential copy-cats, establishing brand loyalty and generating commercial success.
Names, logos, slogans, packaging, shapes, colours and even smells are all theoretically capable of trademark protection. The shape of the vintage Coca-Cola bottle, Nestlé’s slogan ‘HAVE A BREAK – HAVE A KIT KAT’ and the turquoise colour of the Heinz baked bean tin are all examples of protected marks.
Choosing a mark that is distinctive, rather than descriptive or generic, is one of the holy grails of trademark law. MARS for chocolate bars is a perfect example of a name that bears no relation to the product itself and cannot be deemed descriptive. Completely made up words are also a fairly safe bet.
The original appearance of food products and/or their packaging, provided they are novel and not commonplace, may also be protected by design rights. This may result from features of the lines, contours, colours, shape, texture and/or materials of the product itself, but note that mere surface decoration does not count.
Commercially sensitive information, knowledge of which creates an advantage over market competitors, may also be protected as a trade secret. This could cover all sorts of material within the food industry, including products, recipes, techniques and methods.
Just like copyright, trade secrets do not require registration. They do, however, require strict controls over their disclosure. Essentially this means that they should only be disclosed on a ‘need to know’ basis and imposing an express obligation of confidence. Practically speaking, asking third parties (including employees) to sign written confidentiality agreements before disclosing any secrets to them is always a shrewd measure to take.
IP Protection: An Investment Worth Making
Failure to protect the potentially wide array of intellectual property created by luxury food sector businesses can diminish and dilute what is, or could be, a hugely reputable brand. Make sure your brand development strategy makes identifying and protecting this valuable property a fundamental priority.
Laura Symons, Intellectual Property LawBrief
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