Intellectual Property Claims
Every food sector business from start up to multinational creates intellectual property. These assets can be extremely valuable, particularly when a company becomes successful. If any form of intellectual property is not protected at the beginning, its value can be lost, stolen or diminished.
Intellectual property protection in the food sector covers everything from the production of ingredients and creation of recipes to the labelling, marketing and branding of the finished product. Types of intellectual property relevant to the food industry include patents, trade marks, copyright, trade secrets and design rights.
The concept of food patenting is a relatively new phenomenon. Patents cover a broad range of areas within the food sector; everything from the composition of the food itself, to the actual process of making the food. It is possible to patent new ingredients, new products, packaging, processing methods and novel applications. Innovation in food technology often results in new ingredients and products which may be patented. A food business should seek to register a patent in circumstances where, for example, the packaging features provide storage advantages, or improves delivery to the consumer in a novel fashion and involves an inventive step in the process. Likewise, patents are useful if the production method for creating food is unique as this creates difficulties for competitors trying to imitate your product.
Currently, patents are becoming more and more common to protect biotechnology innovation, particularly in the field of agricultural biotechnology research and development. Patents in this field ensure inventions and ideas are protected long term so the original inventor has the opportunity to recoup the initial financial investments.
Trademarks are an integral part of any food company’s branding strategy. Effective branding strategies ensure the product is distinctive and valued, easily recognisable to consumers and help in achieving and sustaining a competitive market share. The moment a new good or service is created it is worthwhile thinking of distinctive elements surrounding the brand which can avail of trademark protection. The more distinctive the name or logo is, the easier it is for it to obtain trademark protection.
Trademarks can include words, logos, shapes (of the food product itself or its packaging), slogans, specific colours and sounds. The trademark can not be a direct description of the good itself nor can they contain generic names (for example, “carrots” for carrots).
Examples of successful food related trademarks include the distinctive turquoise colour on Heinz baked bins tins, the Coca Cola logo and bottle shape and the Toblerone bar shape.
The purpose of a copyright is to protect creative work, granting authors exclusive privilege to produce, create or display such work. Copyright does not require registration in Europe (although it does in the US). Here, it subsists on the creation of an artistic work (which is widely defined in the Copyright and Related Rights Act). Where food is concerned, copyright is a complex area as sometimes a list of ingredients or a specific method of cooking may not be enough to obtain copyright protection. However, a cook book containing recipes, for example, will be protected by copyright laws. In the right circumstances, copyright protection can cover certain ingredients and their quantities, the idea of the product and the style, method or technique of preparation. Ballymaloe Cookery School, for example, will own the copyright over any recipes that are handed out at demonstrations. They most likely have assigned the copyright in their books to their publisher, as part of a book deal. These examples show how important it is to protect IP, and how valuable it can be.
Broadly speaking, any confidential commercial information which gives a competitive edge may be considered as a trade secret. Within the food industry this includes recipes, formulae, manufacturing processes and, potentially, sales and distribution methods. Trade secrets are protected without registration and thus enjoy protection for an unlimited period of time.
It may be worthwhile for food enterprises to firstly decide if their secret meets the patentability criteria and if so, would it be better protected by a patent. Secondly, the secret must be kept as confidential as possible with a limited number of people knowing. It is useful set in place confidentiality agreements which must always be signed before disclosing such information with third parties, business partners or employees.
Trade secrets are advantageous in that there is no waiting time for protection, no registration cost and no limited time of protection. However, trade secrets do not prevent competitors from dissecting an innovative product to discover and commercially use the secret. The level of trade secret protection varies from country to country, however, despite there being no specific legislation in place for trade secrets in Ireland, protection is still effective.
Design rights give protection to existing designs such as lines, shapes, textures or materials. It is often used with food stuffs and covers the making, using, putting on to the market, exporting and importing of the product.
Why Protect IP?
Protecting your intellectual property is crucial in the current highly competitive business climate. Protection ultimately ensures that food businesses gain a substantial market share whilst developing products at your own leisure and without amounting competitive pressure. Each specific protection has the capacity to protect your product depending on the extent of protection needed and your future business vision. Protection operates at every stage in the food sector and is undoubtedly a necessity in guaranteeing the creator’s product remains unique, competitive, recognisable to consumers and profitable for many years.
Please ask our dedicated IP team for details of our how to protect your IP in a cost efficient, strategic and commercial manner. We will be happy to answer any queries you may have on food-related IP issues.