Protecting innovation in the food & drink industry: the importance of trade marks, copyright and patents

20th August 2020

The food and drink industry is firmly undergoing a revolution. Consumer demand for ethically produced products, particularly those which are vegetarian and vegan has skyrocketed, driven by flexitarian diets and the desire to lead a healthier, more environmentally conscious lifestyle. In 2019, one in four new food products brought to the market was labelled vegan. Sales of meat-free foods leaped from £582 million in 2014 to an estimated £816m in 2019. By 2024 sales are predicted to surpass £1.1 billion[1].

But with so many meat-free, vegan and ethical food and drink products now available in a dynamic and growing market, brands need to be certain their innovations and intellectual property is adequately protected from use by a competitor.

A global race

Innovative practice abounds as new brands emerge onto the market at lightning speed, each with their own recipes and processes, developed in hopes of beating the competition to become a frontrunner in the space and build customer loyalty. Creating a meatless mince, chicken or sausage that looks, feels and tastes like its meaty contemporary, whilst containing ethically sourced ingredients – or manmade ones that mimic those we’re unable to source ethically – requires incredible innovation and can take years to perfect.

As plant-based and flexitarian lifestyles gain ground across the world, and it is no longer enough to have your products protected across only one territory. The race is on to become a global market  leader and brands need to consider copyright, trade mark and patent protection across their designs, packaging and processes to gain and maintain a commercial advantage in multiple countries.

Imitation and limitations

Those new to the vegan, meat-free and ethical produce arena are looking to mimic those that have already succeeded. The market is awash with copies, lookalikes and imitations, and not many brands have yet built a big enough brand presence or consistently loyal following that enables them to rest on their laurels without consumers diverting to trying something new.

The issue of imitation is often complicated by the fact that, when it comes to meat-free products, there is a need for the brand name to explain what the product is. People like to know they are consuming meat-free products from the name – and it has to portray that it is vegan, meat-free and ethical.

The brand name chosen can often already be taken by someone quicker to market and, as these names tend to be inherently descriptive, this poses a problem as oft-used phrases can be hard to trade mark. A trade mark – in this case the name – needs to be capable of distinctive character, going above and beyond mere description. Think of The Meatless Farm Co, Impossible Foods and Beyond Meat as vegan and meat-free brand names that go above description, while still conveying exactly what the product is.

The power of patent

Perhaps unsurprisingly, patents in meat-free products are on the rise to protect brand innovations. There is a large amount of scientific discovery and development that goes into getting meat-free, ethical products on your plate. Growing ‘meat’ in a lab requires highly sophisticated bioscientific processes and, as well as this, meatless brands are having to rethink which core ingredients they can use while keeping their products ethical in production and healthy. For example, palm oil, used in many foods as it is the least expensive vegetable oil in the world, has come under much scrutiny in recent years due to the level of deforestation taking place to harvest it, and the subsequent negative impact on the environment. Meat-free, vegan and ethical products must find and, in some instances, create a substitute for ingredients like this. Innovations such as these must be adequately protected with registered patents in every territory to prevent a competitor using them to their own commercial advantage.

Recipe for success

Recipes are notoriously difficult to protect, however, there are means under intellectual property law and practice to look after the innovative combinations meat-free food development teams have worked hard to perfect.

Where confidential information is included in recipe development, brands need to have adequate maintenance policies in place and ensure contractual frameworks they have with any third parties are suitable, so sensitive information is not leaked or shared.

In any collaboration or joint venture, each party should set out the background intellectual property of each partner and what will happen to any intellectual property created during the process, including who owns it, who will cover associated costs and how commercial benefits of the intellectual property will be agreed. Underpinning the arrangement with a robust contract is key.

Behind the inherent innovation driving the meat-free, vegan and ethical food revolution lies strong research and development teams who are working with their legal advisors to ensure that the valuable intellectual property being created is suitably protected.  By obtaining strong intellectual property rights, meatless brands can secure a monopoly over their innovation. This monopoly plays a critical role in the process of taking innovative technology to the market, as the exclusivity granted by their intellectual property rights ensures that these companies can establish a solid market position and a competitive edge. Furthermore, as there are many players involved in developing plant-based technology for this sector, it is critical that businesses secure and protect their innovation before their competitors. The effective use of intellectual property can reduce the risk for the businesses and ensure that they enjoy the full benefit of their innovation.

[1] https://www.mintel.com/press-centre/food-and-drink/plant-based-push-uk-sales-of-meat-free-foods-shoot-up-40-between-2014-19