This month, I had the pleasure of moderating the panel Bon Appétit: IP Issues in Food for the ABA Intellectual Property Law Section Annual Meeting, IPLSPRING, in which we discussed the many ways intellectual property protections are used for food and food-related products. Here are some of the key takeaways from this panel.
Traditional trademarks (words, logos, symbols, taglines) are the most common type of trademark used in the food industry. Companies consider all opportunities to protect their trademarks: in any given product package, the company name and logo (house brand), product name, product type (sub-brand), and flavor (variant) could all be trademarked. Did you know that “All the flavor you could wish for,” “Don’t just say it, bake it,” and “Have yourself a merry little mingle” are all registered taglines?
However, the food industry very often turns to non-traditional trademarks as well. The most commonly used, trade dress, is available to protect the overall appearance of a product (size, shape, color, color combinations, graphics). In the food industry, trade dress is most often used to protect product packaging. Some well-known examples include the Coca-Cola bottle, Maker’s Mark dripping wax seal, and Jelly Belly Candy Company’s bean-shaped window. Product designs can also be protected, but the threshold is higher, so only well-known, iconic product shapes have been allowed to register, such as Hershey’s Kisses and Chocolate Bars, Pepperidge Farm’s Goldfish Crackers, Frito-Lay’s Sun Chips, and Milano Cookies.
For consumer product companies such as Newell Brands (whose Patent Counsel was on our panel), consumer insights determine which product features will drive consumer purchasing, which in turn impacts the company’s innovation and patenting. Newell Brands’ iconic food patent portfolio includes registrations for removable drip trays and handheld devices for vacuum sealing (FoodSaver), clasps on container lids and product preservation systems (Rubbermaid), innovative self-sharpening knife blocks (Calphalon), stackable pots and pans (anyone who lives in a small apartment knows how life-changing this feature is!), and Ball’s nesting canning jar. Trends related to cooking techniques, materials, and features that consumers seek affect not only what products Newell creates, but also whether it will ultimately decide to patent any utilitarian or aesthetic features of a new product. Deciding whether and what features of a product to patent requires a company to balance plenty of considerations, the main one being the need to adopt an effective patent strategy within budget, which often means that only technologies or features that are expected to be used for a long time will be worth protecting.
The need to synchronize one’s patent and market strategies can be even more tricky in certain fields, such as the engineered foods space. The main problem is that, under current law, patent protection is not available for products that occur naturally. Thus, the US Patent and Trademark Office makes it difficult for inventors who try to patent things that push that boundary – such as food innovations. As the world moves towards synthetic beef to avoid an environmental disaster, and inventors seek to protect their creations, food innovators are often faced with a challenge: consumers want them to make products that look and feel as similar as possible to the real one, but the closer the invention comes to the real product (and the more a company markets it as such), the harder it will be to get a patent on it. This conundrum usually forces innovators to make things less natural than they would like, with the sole aim of being able to patent their creations.
Another issue that food innovators run into is reconciling food science innovation and products that are what one speaker called “mildly unnatural,” with government regulatory standards and consumer quality perceptions. Take for example synthetic beef, which is made of cattle cells cultured and grown in labs. The US Department of Agriculture defines beef as “flesh of cattle” – so, can synthetic beef be labeled as “beef” if it’s derived from cattle cells? On the other hand, organic certifications require that cattle be able to graze naturally, and excludes genetic engineering. This should leave us wondering: can cultured beef be labeled organic?
This tension between food innovation and labeling standards is also present in the trademark space (bringing our discussion full-circle). Certification marks are trademarks that can be licensed to give consumers assurances and information about a product, but “mildly unnatural” products cannot meet many of these marks’ requirements. For example, a drive towards transparency and simplicity in food labeling led to the Clean Label Project – how can cultured meat be labeled without using scientific terms? The Non-GMO Project was created to fill a regulatory gap – how would engineered beef comport with these standards? Consumers are also increasingly environmentally conscious, which is why the Fair Trade certification was created. Synthetic beef is consistent with environmental efforts, but will consumers demand to eat “natural” foods? A related issue faced by food innovators is that the lack of clear labeling regulations subjects the synthetic beef industry to class action lawsuits, which are on the rise. If a patent claim is rejected for being too “natural,” but then an inventor can be sued for marketing that same product as “natural,” what is the inventor supposed to do?
There are so many interesting issues when it comes to IP in the food industry and I thoroughly enjoyed the opportunity to participate in this panel. Thank you to the ABA and the IP Law Section team for putting together a wonderful conference. I hope to see everyone there next year!