It can be easy to overlook intellectual property rights as they apply to beverages. However, beverage producers may be surprised to learn that many facets of their brand and products may be protected by various intellectual property rights. The intellectual property rights which may be relevant to your beverage are trade marks, designs, trade secrets, and in some cases, patents.
A trade mark is an important intellectual property right, particularly as it applies to beverages. To illustrate this point, one need only consider the reputations of the biggest beverage brands in Australia, such as Coca-Cola, Monster Energy, Red Bull, Great Northern Brewing Co., or Penfolds.
Many traders may be hesitant to set aside funds to seek trade mark protection, particularly for startups seeking to utilise funds in the most efficient manner. This can become an expensive pitfall which may easily be avoided. A registered trade mark provides a trader with at least two key benefits (1) the right to seek relief for infringement their trade mark; and (2) the right to use the mark.
The initial term of a trade mark registration is 10 years. However, unlike other intellectual property rights, a trade mark registration may be renewed in perpetuity until it is no longer needed.
In some instances, new traders will begin use of a mark based on a business name failing to realise that a business name does not provide exclusive rights to the name. Furthermore, the registration of a business name also does not ensure that you are not infringing another trader’s trade mark. Accordingly, new traders may spend large amounts of money advertising under a mark that they may never obtain rights to, and further maybe required to change that mark in response to allegations of infringement.
Where a beverage container takes on a new and distinctive shape and/or ornamentation, you may seek to protect the overall impression of such a container. Examples of such containers are provided below.
Australian Design Registration No. 201613419
Owned by The Coca-Cola Company
Australian Design Registration No. 201315725
Owned by The Absolut Company Aktiebolag
In Australia, the initial term of a registered design is 5 years which is extendable for a further 5 years for a maximum of a 10-year term. In addition, examination of registered designs may be deferred until you become aware of a potential infringer and wish to enforce your design right. Design protection may assist in protecting your intellectual property until you have had an opportunity to build a reputation in your brand, for example, through use of your trade mark.
While Australia has relatively recently introduced a grace period, it is vital to keep a design confidential until you have determined whether you will seek design protection. Otherwise, you may inadvertently make disclosures which result in you foregoing the right to seek design protection.
Trade secrets are confidential information which may provide a competitive advantage over others in your industry. In Australia, recipes are not patentable subject matter per se. Accordingly, recipes or directions for making a beverage may form a trade secret.
Trade secrets are not registered in Australia. Therefore, the onus to protect a trade secret is placed on the company and its employees. Protecting a trade secret can be done by limiting information disclosures and keeping information confidential through the implementation of confidentiality agreements. A well-known example of a trade secret is the Coca-Cola syrup recipe which had been kept in a bank vault since 1925. In addition, it is understood that only 2 employees know the complete formula of the Coca-Cola syrup.
Where the method of producing a beverage may result in a beneficial or surprising effect, the process or method for producing such a beverage may be patentable subject matter. One downside to patenting such a process as opposed to keeping it a trade secret is that, in seeking patent protection, the method or process of producing such a beverage would become public knowledge.
Furthermore, patent protection lasts for 20 years. As seen from the Coca-Cola example above, the recipe has remained a trade secret for far longer. Accordingly, in some instances patent protection may or may not be suitable protection.
There is no prescription for protecting a beverage brand. However, by seeking advice early, you may avoid common pitfalls and/or secure protection which allows you to protect your economic endeavours as well as avoid spending money which will ultimately provide no value to your brand.
If you are looking to start a brand of beverage, or any other product or service, the attorneys at Michael Buck IP can assist you with securing the appropriate intellectual property rights and avoiding costly pitfalls. Contact us on 07 3369 2226 or email firstname.lastname@example.org.