In modern developed countries, food is not only considered a means to obtain necessary nutrition but a part of the experience industry, where businesses and manufacturers compete for the attention of customers who make increasing demands for quality and traceability. Meanwhile, food and drink-related brands are advertised like never before on social media, where so-called influencers partner with well-known brands and restaurants as part of the food products’ marketing.

The head chef at the prestigious and popular Chicago restaurant Alinea invented a method to create an edible balloon. The balloon was wildly popular with customers and on social media but it didn’t take long for other restaurants to start making their own versions. Unfortunately, this is not the only example of a food-related recipe/invention being copied. What follows are a few interesting facts on the importance of intellectual property in the food industry and how food can be protected as intellectual property.

Trademarks

Trademarks are used to distinguish between products and services in the marketplace. They are business tools to maintain the image, reputation and goodwill of companies. It is important for food companies to protect their trademarks, whether they intend to establish themselves on the domestic market or internationally.  The trademark can let consumers know who produced the product they are buying, and can give an indication of the quality of the product in question. A strong trademark can be among a company’s most valuable assets. Examples of well-known international food trademarks include McDonald's, Starbucks and Pepsi. Trademark registration is valid for 10 years at a time, after which an application for renewal can be filed every ten years.  

Patents

A patent gives the holder exclusive rights to exploit their invention for a limited time, either for themselves or by allowing others to exploit it. Patents give the holder a competitive advantage,and are one of the factors considered by investor when assessing the value of ideas and businesses. One of the basic conditions for granting a patent is that the invention is new, all over the world. In 

addition, it has to be sufficiently different from what is previously known and suitable for industrial application. A search through Espacenet, the European Patent Office’s database of approximately one million patents, yields some interesting results. When searching for the term “beverage”, you will find a recipe for coffee where the coffee’s bitter taste has been removed and a recipe for decaffeinated tea, flavoured with a patented chemical formula. It is worth noting that there are 773 patents related to chewing gum. Registered patents are valid for 20 years from the date of filing.

Design

Design refers to the appearance of a product or a part of product, defined by its individual components or decoration, mainly lines, outlines, colours, shape, type and/or material.Registration of a design confers an exclusive right to use the design, as well as the right to prohibit or allow others to use it. Design registration is a valuable property right and a good investment if international marketing is planned. In the food sector, the Swiss Toblerone chocolate is probably one of the best-known designs. There was much debate in 2016 when, in the lead up to Brexit, the UK manufacturer decided to widen the gaps between the chocolate pieces, thus reducing the packaging from 170 g to 150 g. This change has been the cause of discussions among both intellectual property rights experts and British chocolate fans. Another example of registered design in the food industry is food packaging.  With registration, design can be protected for up to 25 years, with renewal every 5 years from the filing date.  

Trade secrets

Trade secrets can be various kinds of information that is valuable to a company and should be kept secret. The information may concern e.g. production methods, processes and/or recipes.Non-disclosure agreements are often signed, whereby the parties undertake to neither exploit trade secrets nor disclose them to third parties. Food companies and restaurants often use such agreements as marketing tools. Famous trade secrets in the food and beverage industry include the recipes for Coca-Cola,Dr. Pepper and KFC chicken. The fact that these recipes are trade secrets has been part of the image and marketing of these companies for decades. 

Product names

Today, over 2,400 food products in Europe are protected as designations of origin, geographical indications or traditional specialties. In 2014, laws to this effect were passed in Iceland with the aim of providing legal protection of products that fulfil the relevant requirements and criteria, increasing consumer protection and preventing unfair business practices. Both “Icelandic Lamb” and “Icelandic Lopapeysa” are registered product names in Iceland. The provisions of the Act on product names also apply to foreign product names that have received protection under the law or on the basis of international agreements. When a product name is protected,it may not be used unless the product originates in the relevant geographical area and fulfills certain requirements regarding production and ingredients.Examples of protected product names include Champagne from France, Parmigiano Reggiano from Italy, Jamon de Serón from Spain, Havarti from Denmark and Feta from Greece.

This article has covered the main ways in which intellectual property is protected in the food industry and named a few examples. Technology is constantly evolving. Many food experts believe that the 3D printing of food is around the corner and that in the future, our food will largely be produced and served by robots. Such methods would multiply productivity and greatly reduce food waste. The possibility of registering smell and taste as intellectual property has been under consideration for some time now, but this has proven to be quite challenging, both in theory and technical execution. Will technology allow us to transmit smells and flavours digitally in the future?

We don’t know what the future has in store, however it is certain that intellectual property in the food sector is more important than ever.

This article first appeared in the ISIPO Annual Report 2019.

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Nanna Helga Valfells

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