What features of food and drink can be a trade mark?

16th Jul 2020

Taste and smell are integral to food and drink manufacturers appealing to consumers’ senses – but can they be protected as trade marks?

Enjoying delicious food or savouring a refreshing drink is an experience. It is a feast for the senses. From the way it looks, to how it smells and tastes. But how much of what makes a food or drink product special can be protected as a trade mark?

The food and drink sector is incredibly competitive, with new products and brands launching all the time. Your brand name, logo and other brand assets can play a key role in your success. But you need to protect them. 

Registering a trade mark is a powerful tool, offering protection and preventing competitors from using your branding and exploiting the reputation you have built up as well as adding value to the bottom line of the business.

But what aspects of a food and drink product can be protected?

Traditional food and drink trade marks

A trade mark may consist of words (including personal names), designs, letters, numerals, colours, sounds or the shape of goods or their packaging.

To be considered a trade mark, the aspect of your product that you want to protect must be capable of being represented on the trade mark register. This ensures that the mark can be viewed clearly and precisely and is capable of functioning as a badge of origin.

Traditional signs and symbols including a product’s name, logo, packaging and branding can all be registered as a trade mark. 

However, is it possible to go further and protect other aspects of a food or drink product through trade mark registration? In theory, yes.

The future – protecting smells and tastes

In theory smells, shapes, colour or even taste could be capable of functioning as a badge of origin. This could mean that the way a chef’s signature dish is presented, how a restaurant’s famous dessert looks or the taste of a particular beer could be protected.

However, trade mark case law dictates that the representation of the mark must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. That creates a challenge. 

How do you protect non-traditional elements? How do you capture or record a taste or smell? 

Will a scientific formula be sufficient that everyone can easily understand? 

Perhaps the taste of, for instance strawberries for a beer (not containing strawberries) be capable of functioning as a badge of origin. What about how subjective these things are to individual consumers?

The technology does not yet exist to capture, store and record smells and taste. But given the speed of technological advancements, we can imagine a future when such technology could exist – and once it does, it could be possible to register smell or taste as a trade mark.

Thinking creatively

Until suitable technology is available, there are other creative ways of protecting food and drink products.

One way could be to register the name of a particular dish as a traditional trade mark. This may prevent others from calling the same dish the same or similar name.

A certification mark could be useful as it requires others to follow strict guidelines before being allowed to call their food or drink product a particular brand name, for example, referring to a type of cheese by a particular name. A certification mark would enable others to use the “brand name” as long as they met the criteria thereby maintaining the reputation quality of the food or drink.

Other intellectual property rights could also be useful, such as patents for the process involved in creating new and inventive foods or registered designs to protect the look of the dish or packaging, or applying for a protected food name status such as a geographical indication of origin. Copyright is useful too for protecting recipes or protecting secret ingredients.

Whatever avenue you go down, thinking about how to protect your food and drink brand is always going to be time well spent, after all, you have invested time to create the product – you don’t want that to go to waste.

Sanjay Raphael is a Chartered Trade Mark Attorney in the intellectual property and IT team at Stephens Scown LLP in Exeter. 

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