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Ever considered registering for a trademark? What about a patent, or a trade dress? Alice Pang and Margarita Wallach of McCarter & English, LLP are here to teach you about the many different ways you can protect your brand from competition in the saturated natural food and beverage marketplace.
November 9, 2018
“As the food industry has become more saturated and as newer and smaller brands are coming into this space on a daily basis, shelf space has really become very competitive, and it’s shrinking. So it’s imperative that as you’re thinking about your product and brand that you pay attention to all of these factors [that make your product unique] so you can start creating brand equity, which becomes an invaluable corporate asset that you can later sell or license.”
—Margarita Wallach, McCarter & English, LLP
A brand goes beyond the product or service, it should evoke an emotional experience for the consumer
There must be one or some features that are unique to your brand alone, and this intellectual property should be protected through trademarks, copyright, patents, etc.
Not all trademarks are equal in strength
Descriptive and suggestive marks are attractive from a marketing perspective
Weaker marks can cause long-term problems; if others are using your mark, it will be more expensive to police
Weaker marks can harm your brand from a marketing angle
‘Trade dress’ is the total image of a product including its size, shape, color, color combinations, texture and graphics. They are crucial to identifying the product.
Trade dress may be registered if it is non-functional, distinctive and identifies the products of a particular source from those of others
Copyright law protects an original creative expression fixed in a tangible medium
Ornate/artistic designs or logos can be copyrighted
You should list a copyright notice–©–on your website and on any products or informational pamphlets
A copyright registration is needed to enforce your copyright in federal court
You can protect recipes via trade secret law so long as the recipe is of limited availability, has economic value, and is kept a secret
You don’t have to disclose the recipe, and manufacturers can sue should someone try to sell the formula to competitors
You can use a patent to protect a novel invention, such as storing peanut butter and jelly in the same jar, but in direct opposition to trade secret law you must disclose everything when applying for one
Remember that each IP right serves a different purpose, and they are not mutually exclusive
Identify intellectual property business assets and develop an overall strategy for the IP portfolio from the very start, even before launching
IP rights are strengthened by their profile in the marketplace and are weakened if unused or too similar to other brands’
Be consistent in trademark and/or copyright use
Police your unique mark and use the law to prevent competitors from infringing on your rights
Protect your brand like you would any other corporate asset
This session—Staying out of Hot Water: Words of Wisdom for Brand Love and Protection—was filmed at Natural Products Expo East 2018. Click 'download' below to access the presentation slides.
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