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May 22, 2017

Trademarking your Brand in Food and Beverage Industry

Recently, we heard the news that Kit Kat has failed in its latest bid to trademark the four-finger shape of its iconic bar.

Nestle, the brand owners the famous chocolate bar, had been seeking to protect the shape of the bar under law, claiming that it was so unique and instantly recognisable that it warranted a trademark.

However, a Court of Appeal judge disagreed and rejected the brand's attempts. 

Nestle’s high-profile efforts to trademark the shape of its Kit Kat bar highlights the degree of importance businesses place on protecting the most unique, recognisable and consequently valuable, aspects of their brands.Nowhere is this more evident than in the food and drink industry.

Creating and launching a food or drink brand and driving its success takes time, money and resources, the likes of which need to be maintained in order to make a return on the investment. By acquiring a trademark, an established company can protect their brand, and as such can claim a monopoly over that market segment.  Trademarking can also ensures protection from infringement or copycat brands, which seek to profit or piggyback from success.

Everything from the recipe, packing, product shape, and colour palette can be trademarked. So where do you begin? If you are considering setting up a food or drink brand, big or small, then there are certain aspects that must be taken into consideration when embarking on trademarking your brand.

When creating a brand always be thorough, and consider the different stages you'll undertake as part of your product development. Once you have an initial idea ensure you conduct market research to avoid any inadvertent product infringement.

Conducting a trademark search for an existing or similar brand is essential. When creating a brand always take into consideration similar-sounding names, colour schemes, or packaging as other brands. The UK’s Intellectual Property Office will be able to provide in-depth details of trademarked products to assist your research.

Always consult a trade mark attorney at the earliest possible stage to ensure the novel and unique characteristics of your product are protected going forwards.

When submitting the application for the trademark, your attorney can help you in ensuring the product and its uses are described properly. Food and drink items are also classified by the Government, with these generally falling into classes 29 to 32. Your attorney will ensure your product is placed into the correct classification.

The trade mark registration can in some instances take up to eight months, however once approved the protection will be back dated to the date of submission. This means anyone who unlawfully used the trade mark during the application process could have infringed your rights.


This article was first published on Business Wales Website on the 22nd May, 2017 and can be found here.

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