Food and beverage manufacturers use a variety of methods to protect their innovations in business. Often, these protections include patents, trade secrets, copyrights, and trademarks. However, two of the most commonly used intellectual property protections in the food and beverage industry are the most easily confused: trade dress and design patents. In an industry rooted deeply in advertising and saturated with similar products, protecting your food or beverage design through trade dress and design patent protections is a prudent step for any businessperson.

Some of the most common IP protections used to protect innovations in food and beverage products are utility patents, trade secrets, copyrights, and trademarks. Utility patents offer legal protection for functional features of products, or a production process. Trade secrets may be used to protect confidential aspects of the product, such as recipes, confidential production processes, or other confidential information. Copyrights generally offer protection for product writings, drawings, advertisements, or photos. Trademarks protect brand names and logos.

Additionally, two other important types of IP protection are available for nonfunctional aspects of food and beverage products: trade dress and design patents. Trade dress is a type of trademark. But, instead of protecting only a specific logo or name, trade dress offers legal protection to all elements used to promote a good, such as the product shape, product packaging or the overall atmosphere of a business where the good is exclusively sold (think, the interior of a McDonalds). Trade dress is more nuanced than an ordinary trademark because it involves the total image or overall appearance of a product. Furthermore, although legal protection for trade dress (i.e. a registered trademark) will only become effective after years (usually five) of continuous and exclusive use, once granted, the protection lasts so long as the promotion and use of the design continues.

Design patents also protect nonfunctional aspects of a product, such as the appearance of the product or its packaging. A design patent may be granted for a product that is novel and non-obvious, and once issued offers 15 years of exclusive use and protection. This 15 year period of design patent exclusivity is a perfect time for manufacturers to build consumer recognition. For example, a manufacturer might proactively build their trade dress rights by using advertising that draws consumers’ attention to unique features of the product as a way of identifying the source of the product. Then, after the required period of years, the manufacturer can file for registration of their trade dress as a trademark.

Both trade dress trademarks and design patents have unique benefits in terms of enforcement. Generally, a test for infringement of trade dress is whether a consumer is likely to be confused as to the source of the product when comparing designs. Factors in this analysis includes: the similarity between the designs and goods; the sophistication of typical consumers of the product; and the intent of the manufacturer, among others. Thus, this analysis takes into account the product’s place in the market and its specific targeted consumers.

On the other hand, the test for infringement of a design patent is whether the design in question is substantially similar to the patented design from the perception of an ordinary, objective observer. Thus, unlike trade dress, design patents protect only the patented aspects of the design itself. The infringing product is compared directly to the patent, and not to the overall product in relation to its marketplace and consumers.

In conclusion, there are a variety of options to protect functional and nonfunctional innovations in the food and beverage industry. Businesspeople should be creative and utilize the wide variety of IP protection that is available. This also involves proactivity – a businessperson must be intentional and proactively promote their trade dress to consumers in order to have it trademarked. Getting involved early in the protection of your product’s trademarks, design, and other unique innovations will help ensure a food and beverage product maintains a place of unique appeal in the marketplace.

* By Attorney Tori Lynne Kluess, with credit to Laina P. Stuebner

Photo of map[image:/uploads/tori-l-kluess.jpg name:Attorney Tori L. Kluess]

Written By:
Attorney Tori L. Kluess

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