By David Postolski from Gearhart Law

 

As sophisticated science makes it possible to produce new products that taste even better than the foods we’ve come to love, alternative protein startups are making their impact around the world.  And of course, with innovation comes intellectual property protection: the only solution in the U.S. and abroad if you want to protect your process, products, methods, and services from copycats and infringers.  It also acts as a barrier of entry to firms seeking to fill the same need as your entrepreneurial food venture. But how do you go from idea to protected property?

 

Patents

If you make something that is both novel and non-obvious, in other words, sufficiently inventive, compared to what is already in the marketplace, you can register your idea as an invention with the US Patent and Trademark Office (USPTO), through a patent application filing. The process to obtain a grant of your patent application filing takes about three years and usually begins with a worldwide search to figure out what exactly distinguishes your product and what aspects are protectable.  A patent attorney will help you by drafting the proper documents to prove your idea is patent-worthy. Being awarded a U.S. patent grants you the sole right to exclude someone else from making, using, or selling your invention in the U.S.  However, this right will last for 20 years from the day you file and is not renewable.  Such patent rights can be filed in different countries, but inventors/companies only have a limited time to do so!  Like other emerging technologies such as cannabis, software, and the life sciences, obtaining a patent is becoming the gold standard in the world of plant-based products and technologies. Without something truly unique and protected, how enduring can you be?

 

Trademarks

You’ve heard it before and it rings true in the plant-based and food industries as well– it’s ALL ABOUT THE BRANDING!   Branding is equally as important as the product itself, and this is especially true for food companies. In the world of marketing, the term “brand” is broad. But in IP, it is defined as “a symbol, word, or words legally registered or established by use as representing a company or product”. We call this a trademark.

Like patents, trademarks are only approved if no one has filed for the same brand or a brand that consumers may find confusingly similar. If someone has, then you may need to add a unique logo. Selling a different type of good or service under an existing name may be permissible, but the original trademark holder may believe that consumers could confuse the two products, and are often not okay with that possibility. A golden rule is to steer clear of generic and descriptive words and logos (such as pictures of plants!).  Your trademark should have a suggestive meaning or an arbitrary meaning to the actual product or service you are making. Making your brand distinct enough to stand out on a shelf and in the digital marketplace is hard!  A distinctive brand is not just good for marketing; it is the safest way to achieve a federal U.S. trademark, which can also be filed in other countries. This U.S. right lasts for 10 years and is renewable for 10-year periods in perpetuity.

 

Copyrights

The last type of intellectual property is copyright, which protects any sort of creative work that is both original and in a fixed medium. In the food world, recipes are not protectable by copyright, but the creative content that your company generates – such as website content, marketing materials, blogs, original artworks, and designs – are!  This fact is often overlooked, but registering your creative works with the copyright office first is a must. With a copyright, you are simply registering your work without much investigation by the copyright office. If your copyright registration holds up against scrutiny as being original, then it will last the creator’s lifetime, plus 70 years.

 

Trade Secrets

Another popular form of federal IP protection in the alternative protein and larger food industry is trade secret protection. A trade secret can be a formula, practice, recipe, process, design, instrument, pattern, or compilation of information, which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. It is often a food company’s confidential or classified information. If you can keep it a secret and treat it as such to the world (this is harder than some companies realize) and internally with processes and non-disclosure agreements, the court will protect it as a secret if someone should misappropriate or steal it from you. Your secret does not expire like a patent and there are no federal registration costs. Of course, there are costs associated with processes and procedures for ensuring what you have is indeed a secret and protected as such.

In the alternative protein and plant-based industry, unconventional and non-obvious ingredients, cooking practices and methods are indeed novel and patentable, especially if they create unexpected results and discoveries not yet seen. The scientific, physiological, and physical aspects of the food you create from existing ingredients, or unexpected and not-so-obvious ingredients, can lead to patents that you can protect and monetize through your company.  Where branding is integral to digital marketing and internet traffic, it is essential that a trademark is cleared for use before actually using it.  The worst news to deliver to a brand owner is that the money they spent on their brand is all for naught as another company already has a trademark registration for a similar name or logo.  Food companies must understand the consequences of their marketing efforts in copyright when using social media sites and posting public content.  Understanding the value of copyright in what you create and how you publish it may determine your ability to control and monetize your copyrighted creative works.

Plant based products and alternative protein technologies are not just the new kid on the block anymore– they are here to stay. This should mean an adherence to the current regulatory schemes of intellectual property rights!

 

For more information on any of the above, please contact David Postolski at david@gearhartlaw.com


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