IP Primer for Emerging Healthy F&B Companies

Intellectual property protection is essential for emerging companies in the healthy food and beverage (“F&B”) space to attract investors and stand out from competitors. To gain a competitive edge, companies should understand and be intentional about building their intellectual property portfolio, which can include patents, trademarks, copyrights and trade secrets. A robust – or lackluster – IP portfolio can make or break an emerging company. 

Trademarks

A trademark is any word, phrase, symbol, or design that identifies the source of a product. Trademarks are typically used in the healthy F&B industry to protect brand names (e.g., “Beyond Meat”), stylized logos (e.g.,  ) and taglines (e.g., Oatly’s “Wow No Cow!”). Companies may even secure trademark protection for unique packaging designs, product color, and product shape that have come to represent the brand. 

The healthy F&B industry is brand-driven: the ability to stand out on a grocery store shelf and persuade a customer to pick up the product is a key to the success of the business. Therefore, it is important to secure trademark protection early and correctly. Legal counsel can assist with identifying the level of risk associated with adopting particular marks, developing a strategic trademark filing program, and enforcing the company’s rights against infringing parties. 

Patents

Patents protect new and innovative products or processes. Patents are issued by the federal government and allow patent owners to exclude others from making, selling, or using the new product or process for a limited period (usually 20 years). In the healthy F&B space, companies are increasingly securing patent protection for the processes involved in producing and manufacturing their products. For example, Impossible Foods owns a patent that protects the process of creating vegetarian burgers. Additionally, General Mills owns patents for several of its products and processes, including the process of creating shelf stable foods using nut butter.  F&B companies have also secured patents to protect novel and ornamental designs such as the shape of a beverage bottle or the unique appearance of a candy bar. For example, Chobani owns a design patent covering the unique shape of its yogurt cups and Kraft obtained design patents for many of its uniquely shaped pastas, including pasta in the shape of musical instruments and football helmets.  Emerging companies should consider whether their new product, including its packaging and design, or its processes, are eligible for patent protection and/or may infringe a third party’s patent. 

Copyrights

Copyright law protects original works of authorship including literary, musical, and artistic works as well as sound recordings, visual recordings, and even software. Copyright does not protect mere ideas – the work must be ‘fixed in tangible form,’ i.e., drawn, photographed, written down, or otherwise recorded.  A copyright is conferred automatically as soon as the work is created.  However, to sue for copyright infringement, a company must register its creation with the U.S. Copyright Office. Healthy F&B companies, including Impossible Foods, Chobani and Nestle Company, own registered copyrights for their product labels, overwraps, package design, TV commercials and other creative works. Notably, securing copyright protection for product labels and packaging designs can make it easier to take action against generic brands who may copy elements of a product’s look-and-feel.  

Trade Secrets

Trade secrets protect valuable information including recipes, formulas, processes and techniques that give a business a competitive advantage. Trade secrets do not have to be innovative, but rather just new and unknown information. Healthy F&B companies use trade secrets to prevent employees and former employees from disclosing processes and recipes, to protect business strategies and plans, and to protect data about suppliers and customers. For example, Bimbo Bakeries, the parent company of Thomas’, filed a lawsuit against a former employee who accepted a job with Hostess. Bimbo Bakeries alleged the employee stole its secret formula to creating the distinctive “nooks and crannies” that appear on Thomas’s English Muffins. Ultimately, the court prohibited the former Bimbo Bakeries’ employee from working at Hostess.

To secure protection for trade secrets, companies generally need to establish the following: the secret information is not generally known in the relevant industry; the company has invested effort and resources into developing the trade secret; the secret is of commercial value to the business; and the company has made efforts to maintain the confidentiality of the information.

Conclusion

Emerging companies in the healthy F&B space will benefit from identifying, registering, and consistently enforcing their intellectual property rights. Seeking legal advice early on and developing a strong intellectual property portfolio is essential to mitigating risk, maintaining a competitive advantage and attracting investors.

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