(9 min read)
In a recent webinar, ProVeg International partnered with Withers and Rogers, a leading UK and European firm of patent and trademark attorneys with an active base in the food and drink market.
The Withers and Rogers experts who participated were Partner and Chartered Trademark Attorney Mark Caddle and Associate Georgia Mann, who, together, head up Withers and Rogers’ specialist food and drink group.
Some of the key topics covered included:
In this article, we’ll be providing you with a summary of the key points covered in the webinar, but you can also watch the full recording and read Withers and Rogers’ How-To Guide, to learn more.
After introducing themselves, Mark Caddle and Georgia Mann get straight to business – “We’re going to explain what intellectual property is, why it’s important, and how you can protect your business’s intellectual property,” Caddle says.
“Thinking theoretically,” he continues, “an IP is a sort of bargain you make with the government. You tell them what your invention might be, what your brand is, and in return, they give you the ‘monopoly right’ in that particular set of IP.”
“Essentially, it gives you the right to prevent other people from doing things,” Caddle says. “It’s an intangible property right, and like other property rights, it should be seen as an asset of a business, something you can shout about to investors. Typically, the larger and more successful a business, the more it’s invested in its intellectual property.”
Caddle adds: “IP can prevent others from taking advantage of or stealing the creations that you, as a business, have as pieces of property. It’s something you can buy and sell; something you can license to generate revenue for royalties. So it’s a commercial tool that adds value to a business.”
However, the only way that all of this realisable for a business, is if it does something about it. IP is something that businesses should think about at the outset, and every business should have a team that focuses on its IP portfolio and strategy.
A trademark is the badge by which customers find your products or services in the marketplace. What is a Trade Mark? (2023). CITMA. Available at: https://www.citma.org.uk/trade-marks-ip/what-is-a-trade-mark.html. Accessed 2023-02-14. Registration is the way to prevent people from using an identical trademark for what you do, or even similar trademarks. “You don’t want to have a ‘copycat’ situation,” says Caddle. “Or anyone counterfeiting your products or getting too close to how your brand looks.” That’s where a trademark can help.
“Every business has a trademark,” he adds. “Every business has a brand. It has a name. It’s the way you engage with your customer base and it educates customers to buy from you. So, the trademark could be seen as the ‘indication of origin’.”
“A trademark is also an advertising tool; a way of guaranteeing quality that differentiates what you do from competitors. It’s your communication to the public that this is what you do and why people should buy from you.”
“The absolute test is whether or not a trademark is ‘distinctive’,” says Caddle. “Your trademark has to distinguish what you do; it can’t just describe what the product is.”
“A good example would be the word ‘Impossible’, from the plant-based meat company. It’s a known term and [points to the idea that the company] has achieved something that humanity thought was impossible – there’s a nod to that, but it doesn’t mean anything in terms of the product; it doesn’t describe its characteristics or that it’s a non-meat product. It’s a creative and unique concept – something that’s readily registerable as a trademark.”
“Anything that is part of the brand identity should be considered a trademark and registered, and that includes letters, words, logos, numbers, shapes (like the Toblerone triangle shape), and even slogans (depending on how unique it is), smells (though that doesn’t happen often!), sounds, colour usage, and digital assets.”
So, what can’t be registered for a trademark? Caddle explains: “Things that just describe what you do, for example, the phrase ‘low-fat mayo’ for low-fat mayonnaise – it just tells you what the product does. And that’s true of generic names as well, like ‘greens’ or ‘salad’ – that sort of thing. Protecting words that are unique and fanciful is the way to go.”
Caddle explains that you want to avoid launching your brand after you’ve invested time, money, and passion, just to be told that someone else has beaten you to it and already has a trademark registration for your offering. However, you can easily avoid this risk by conducting what Withers and Rogers calls a ‘trademark claim and search’.
“You search in the countries of interest to you – and these rights are territorial,” explains Caddle, “to make sure you’re not going to infringe someone else’s trademark when your product is launched. Otherwise, you may have to rebrand, take your products off the shelves, and start again. So, do that ASAP once you’ve created a brand before you’ve even spent money on packaging.”
He continues: “I won’t elaborate on what a trademark registration process is, but essentially, you fill out an application form to tell the government what the trademark is, or what products or services you want to use it for, and they check if it’s legally suitable. They also give third parties a chance to challenge the application. If they have other trademark rights that they allege to be too close to yours, they might try and stop your trademark from becoming registered.”
Mann explains that a patent protects how something works, and through that, it can protect your business’s intellectual property. “It’s a legal right,” she says. “It protects technical features of products and processes. IP rights are negative rights, and so are patents. A patent is a right to stop others from using your protected invention. So, it’s also a monopoly right, and it’s granted in exchange for publishing your idea. You publish your invention in exchange for this government monopoly right, so you have to disclose your idea. A patent can last up to 20 years, making it different from a trademark, which can last forever, and [for which] you must make repeated payments.”
“If we’re thinking about the food industry,” Mann says, “we can protect food products, drinks, formulation, equipment, means of dispensing products, methods of making a particular food, types of machinery, ways to increase a product’s sustainability, etc. In our work at Withers and Rogers, we’ve come across patents for things like instant-noodle formulations that don’t clump when you rehydrate them; novel crystal structures of ice lollies that can better retain flavour, and many more.”
In order to be eligible for patent protection, you have to meet a few requirements, the main one being that what you have is new. “Your invention can’t have been disclosed by you or anyone else anywhere in the world,” Mann explains, “whether that’s online, or in the form of another patent application that’s [been] published. You have to be new to be considered inventive and eligible. By that, we mean that it can’t be considered obvious, in view of what exists, to someone that works in that particular field. What you’re looking for is an unexpected technical advantage; a surprising solution to a problem.”
Not everything is eligible for patent protection. But this can vary by jurisdiction. In the UK, for example, you can’t get patent protection for a business method.
Mann continues: “You’re publishing your invention in exchange for your rights. And you have to describe at least one way of implementing the invention such that upon expiration of your patent, a third party can independently work that invention. Essentially, you’re enhancing the sum of knowledge.”
“It’s a simple schematic of the process,” Mann says. “You start off with filing and then you go into your search stage. This is where the patent office will identify all published documents that would be considered relevant to your invention. And that will give you an idea of how new and how inventive your [invention] is. If it’s all looking good, you’ll likely proceed to examination.”
“That is where there’s the arguing of your patentability case with the patent office. If the examiner agrees, you’ll get granted rights. The granted patent right is important because you cannot enforce the patent until it’s officially granted.”
Patent searches, like those for trademarks, are important to conduct before applying for a patent. Mann explains: “There are different searches you can do, with one of the most common being a search for third-party listing rights.”
“You don’t want to invest a lot of money in commercial activities that are going to encroach upon someone else’s patent right, and you want to mitigate that risk. Your company and investors will want that reassurance. One way to do this is through a patent search, especially if it’s a crowded market and you’re not sure how novel and inventive you are.”
“You might also use a patent search to look for areas in the market that you want to focus your research and development on – there’s a lot of technical information out there. If it’s a particularly crowded space, you could look at the landscape and gaps to see if there is anything you can commercialise.”
“In this, patent searching can be a useful tool. However, it is expensive. If you know your market really well, you might not want to invest that money in a search. You might, instead, want to invest it in preparing and filing an application.”
Through the course of this webinar, we learned the following:
Watch the full webinar to learn more about specific trademarks and patents, and to hear answers to common IP questions.
If you want more insight and advice on intellectual property and protecting your products, make sure to read Withers and Rogers’ How-To Guide. Keep an eye out for the next webinar in the series, and don’t waste any time finding out the ways in which you can drive your company’s sales.
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