Intellectual Property

Some say that imitation is the sincerest form of flattery, but when it comes to your food or beverage brand, copycat names are not a compliment. Thankfully, intellectual property (IP) laws in the United States provide a vehicle to challenge imitators. But even so, wise food and beverage companies will strategically consider ways to construct their important brand assets that reduce risk and enhance the possibilities of brand protection.

Ask many marketing professionals how to select a “good” brand name and you will likely hear that it is best to adopt a brand name that conveys something meaningful about the product in order to immediately communicate to the consumer a benefit or attribute. Thus,  brand names often include words that describe an ingredient or flavor characteristic of the associated product, its function, purpose or use, its quality, or the geographic location from where it comes. 

Select a Distinctive Name

In the hierarchy of trademark protection, lawyers often speak in terms of a “spectrum of distinctiveness” with five general categories. At the least distinctive end are generic and descriptive terms. At the opposite end of the spectrum are fanciful and arbitrary marks. Fanciful marks are those that are composed of completely made-up terms. Oreo® for cookies, for instance, falls into this category. 

An arbitrary mark is one that has a common meaning, but that meaning is unrelated to the goods or services being sold under the mark. An example is Apple®, which is generic for a type of fruit, but an arbitrary mark for computers. 

In the middle of the spectrum of distinctiveness are suggestive marks – those that suggest a quality or characteristic of the goods, but require some imagination, thought or perception to reach a conclusion as to their nature. For example, Chicken of the Sea® for canned tuna fits this category. Since consumers do not initially associate arbitrary or fanciful marks with a particular product or its source, an investment in marketing resources to create brand awareness is required. 

Suggestive marks, while not as legally strong as arbitrary or fanciful marks, do enjoy the inherent marketing advantage of connecting a mark to a particular product. And without significant effort over a substantial amount of time, the weakest, merely descriptive marks are incapable of serving a trademark function at all. Being mindful about where a candidate brand falls on the

Clear Your Name 

Once a brand name is selected and before it is actually adopted, you would be wise to seek the advice of IP counsel for a clearance opinion to minimize the risk of pursuing a course that may infringe another’s rights. 

Nothing is more of a buzz-kill following a successful product launch than a cease and desist letter from a competitor with a similar brand name. 

Register at the USPTO

Although “common law” trademark rights provide some level of protection, significant benefits follow from a formal registration of brands as trademarks at the United States Patent and Trademark Office (USPTO). 

Among the many benefits that registration provides is the nationwide, exclusive right to use the mark. Registration also helps protect against abuse in social media and in search engine advertising, in securing domain names, in deterring and enforcement against cyber-squatters, and in preventing the import of counterfeit goods. Registering your brand name also puts others on notice of your rights, and can discourage them from using similar names.

Supplement Your Name 

Everyone is familiar with the Coca-Cola® contour bottle. When you see the swirl-shaped cap of a bottle of whipped topping, do you immediately know it is from a container of Reddi-Wip®? These are examples of protectable trade dress, and they illustrate a few ways that a food and beverage company can embrace a non-functional, highly distinctive, creative element, and associate it uniquely with its own product. 

By incorporating a trade dress that becomes synonymous with a single-source of a product, you can further distinguish your goods from those of your competition. 

When a competitor usurps protectable trade dress, those rights can be enforced against the infringer just like more traditional trademarks. 


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