Introduction
The food industry has grown to become the world’s largest industry due to its vast engagement in and impact on a variety of industries, including farming, agriculture, production, packaging, distribution, retail, and catering. It has, predictably, become one of the most competitive industries, with thousands of companies attempting to outmaneuver one another in order to obtain an advantage over their competitors. To do this, food firms are investing significant resources in developing and promoting distinctive brands, and they are increasingly turning to intellectual property (IP) protection as a means of establishing or maintaining their supremacy in the field.
Despite this, IP protection in the food industry has traditionally been neglected, with the exception of widespread trademark use and some limited design protection given to packaging. IP provides a diverse range of tools that can help businesses stand apart from the competitors. Box innovation has a direct impact on buying behaviour, according to scientific and market studies, with people purchasing more of some products just based on the colour, shape, or markings on the packaging. Meanwhile, around the world, start-ups, innovative entrepreneurs, and chefs are increasingly relying on science and new technology to redefine the sector.
Protection Under Various IPs
IP protection provides a variety of methods for enterprises in the food industry to protect their products. While word marks are by far the most commonly used tool in this industry, there are numerous other underutilized instruments that can provide a competitive advantage.
- Trademark: A trademark is a nonfunctional, distinguishing indication that a company uses to distinguish its products from those of competitors. Trademarks, on the other hand, can be used to protect a product’s shape or even color, as well as its packaging. Toblerone is well known for its unusual triangular chocolate bar, which has a long-standing trademark. Unconventional marks such as sounds, aromas, flavors, and motions are increasingly being sought by businesses all over the world. While securing these types of trademarks in the food industry can be difficult, when they are accessible, they can provide a significant competitive advantage for a company.
- Trade Dress: Trade dress is a component of trademark law that protects a product’s form, shape, color, packaging, or look as long as it serves as a source identifier for the consumer. Simply said, trade dress protects a product’s overall appearance and feels as long as the owner can demonstrate that the consumer will immediately link that appearance and feel with their brand.
- Patent: Any innovative, useful, and nonobvious process, machine, production, or compound is protected by a patent. While patents appear to be an excellent instrument for protecting any unique recipe, manufacturing technique, or packaging, the originality and non-obviousness standards are so high in the food industry that patents are rarely employed. This is especially true in an industry where entrepreneurs are constrained by important food safety concerns that may limit their flexibility in practice. In the food sector, however, patent protection is frequently awarded in areas other than recipes, such as machinery, packaging, and novel processes. This method has also been used to protect innovative delicacies, such as Chef Ferran Adria’s Olive Oil Caviar, which was granted a patent.
- Copyright: Original works of authorship fixed in a tangible medium of expression are protected under copyright law. To gain protection, the author must demonstrate a certain level of originality and that the creative work’s artistic aspects are distinct from its utilitarian function.
Companies have attempted to use copyright law to protect food items with variable degrees of success, owing to the high level of originality required in this field, the utilitarian nature of many food developments, and the requirement that the work be fixed in a tangible medium.
While copyright protection in the food industry has its own set of issues, it can nonetheless provide essential protection for innovative enterprises.
- Trade Secret: Finally, trade secrets safeguard knowledge that has economic worth but is not widely known to others. Trade secrets do not need to be registered, but they do need to be protected by a number of safeguards. Many corporations currently use trade secrets to safeguard their foods by preserving “secret recipes,” such as Coca-soda Cola’s formula, Kentucky Fried Chicken’s “11 herbs and spices” recipe, and the Krispy Kreme doughnut recipe.
Trade secrets are incredibly important, and these recipes will be safeguarded as long as they remain hidden. Trade secrets, on the other hand, can be difficult, time-consuming, and expensive to enforce, and their preservation is precarious because disclosure of the secret would result in the sought monopoly being lost. In a climate where people are more concerned about these issues, they are also less successful in increasing food safety and transparency.
While intellectual property (IP) provides a wide range of potential safeguards, each of these tools has its own set of issues in the food business.
Some Challenges
Food, food packaging, manufacturing processes, and other food sector advancements can all benefit from a variety of potential protections. Many of these security mechanisms, however, confront problems that are particularly difficult to overcome in the food business. The technical function exclusion, the distinctiveness criterion, and several industry-specific safety considerations are among these restrictions.
Any shapes, features, or characteristics that are solely utilitarian or necessary to achieve a technological outcome are normally exempt from copyright, trademark, design, and patent protection. This need presents a considerable issue in the food sector since, more often than not, a functional result dictates the taste, appearance, color, and/or shape of food and/or its packaging: The food must be pleasant, easy to grasp with a fork, spoon, or fingers, easy to eat in one bite, and safe to consume; the packaging must be protective from contamination events and easy to stack or transport, or space-saving or conservation criteria may dictate otherwise.
A mark or trade dress must be distinctive in order to get trademark or trade dress protection, which means that consumers must recognize the mark or trade dress as source identification. Distinctiveness can be innate or gained through practice. Generic marks, on the other hand, can never become unique since they would deny competitors the opportunity to use a phrase that is required to identify a certain product. Because the food market is so competitive, manufacturers and merchants must come up with names that are evocative enough to be remembered by consumers who have many options, food companies often employ trademarks that are very suggestive, bordering on descriptive.
As a result, a number of trademarks are turned down due to a lack of originality.
Conclusion
While securing IP protection in the food industry has unique hurdles, IP continues to play an increasingly important role for businesses wanting to gain a competitive advantage. Food companies are racing to differentiate themselves by applying innovations to the shape, material, color, flavor, texture, or manufacturing methods of their food or packaging, given the importance of social media, influencers, and marketing in buying behavior. Those who can secure these discoveries using suitable IP tools while also maintaining health and noncompetitive food safety laws, which are critical to this company, will most likely win this race.
Contributed by:– Nidhi Jha, Legal intern at LLL
Certification trademark, Food Biotechnology, Intellectual Property, Legal News, Patent, Trade Dress:, Trade Secret, trademark
