So, you have an amazingly tasty, totally revolutionary, ready-to-package food or beverage product. Clever ingredients, GMO free, great reception from the neighbors. By all measures, you have a successful product in the works — but in this space, the reality is that someone else has likely put together your same ingredients in much the same way before. That’s part of what makes protecting intellectual property in the food and beverage industry so tricky. 

You might be surprised to learn that you might not really need a patent in the food and beverage industry. In fact, depending on the type of product you are pursuing, patent protection may not even be viable. A simple trademark and accompanying brand protection strategy may be all that’s required to keep your IP protected. 

However, while your product (i.e. the recipe) itself might not be patentable, you might have some other innovations at your company that are. Here are some unique aspects about trademarks and patents that often find themselves in the food and beverage industry. 

The Product Itself Is Not Likely Patentable

When we look at patentable subject matter, there’s typically no “technology” in a traditional food or beverage product that falls within the statutory realm of what’s available to patent. The closest you might get would be some type of recipe or a formulation — what the patent system calls a “composition of matter.” 

FDA regulations often require you to reveal basic information about your product such as all the product ingredients. Anyone can see what’s in your product, just not the specific ratios or the process of putting it together. You might not know how to make a soda that tastes exactly like Coca-Cola, but look on the side of a can of Coke and you can see the vast majority of what’s in it.

You can certainly patent what are called “compositions of matter”, such as a recipe that’s two parts dates, one part cherries and three parts corn syrup. However, these compositions are typically not patented. They would be super-easy to copy while avoiding patent infringement. Someone could just tweak a new product in a very slight way, while still copying you but without infringing on the patent. At least in the food and beverage industry, the protection you’re getting from a patent is usually not worth the effort and cost. 

Protect the Package Design or the Manufacturing Process Instead

Sometimes, companies patent the way they manufacture a food or beverage product. If you’re dealing with ingredients that have caused complications on traditional food manufacturing lines, or are just difficult to work with, you could patent a clever way of processing it.

For example, one of our local clients, Good Day Chocolate, makes uniquely formulated chocolate products. If you like chocolate and want an extra kick in your fix, check them out here. The confectionary industry is always dealing with problems associated with processing chocolate, which has to be in a liquid form during processing and requires some special equipment and know-how.  You can imagine how the hot, melted chocolate glops up the mechanics of a system. For these types of manufacturers a big part of their intellectual property is the process of knowing how to deal with the melted chocolate within processing machinery. 

You might also be able to focus on the product packaging. Occasionally, we’ll see IP concerning unique product packaging, whether it’s unique due to design or its utility. Perhaps the packaging provides increased spoilage resistance. Maybe it’s more environmentally friendly. An example of this would be self-stable milk products with unique packaging that preserves its freshness and shelf life. 

Focus Your Efforts on Branding and Marketing

The food and beverage industry doesn’t rely so much on true innovation as it does on deep marketing. Food and drinks have always been that way. A company gets a recipe together, it tastes good and then it’s time to focus on branding — packaging, colors, stylization, and name. Marketing, rather than innovation, is the best way to distinguish a brand in a saturated industry. 

From there, a company’s success is mainly about distribution and breadth of its consumer base. It’s about getting on online platforms and strategic retailers. I always say, if you can get your product on the end cap at Whole Foods or Walmart, you’re pretty much set. Alternately, you can try to get sponsorship or a famous celebrity endorsement. If Kim Kardashian says, “Wow, I love this drink!” and puts it on her Instagram, that exposure is worth millions of dollars.

Trademarks and Trade Secrets May Be Better

The famous formula for Coca-Cola has never been patented, and yet no one knows exactly how it’s made. 

The formulation of Coca-Cola has been kept secret for many, many years and, in cases like this where you can maintain the secret, a trade secret has a perpetual life — something you don’t enjoy if you patent the same information. If someone at Coca-Cola had patented the recipe, that patent would have expired many years ago and the recipe would be in the public domain. Instead, the company has managed to keep the formulation secret all this time and its protection lasts forever. 

Related: Worried About Product Copycats? 5 Tips to Get Ahead of the Fast Followers

The downside of this? If the secret gets out, it’s game over; there’s no unringing that bell.

You Need to Secure the Domain Name First

As your lawyer does an availability search for a product name to trademark, you need to secure your domain name. It’s simple and cheap. If you wait until after you begin using your name publicly, it’s much easier for cyber squatters to go ahead and grab domains you might want, making it difficult for you to wrestle them away.

Don’t waste time on a product name before you’ve done that availability diligence with your attorney. It’s simple to do, doesn’t take a ton of time and can prevent impediments down the road.  Securing domain names is one of those “you don’t need a lawyer to do that” jobs. If it looks appealing pay the $10/year and secure the rights to that top level domain.

Your Distribution Network Is Everything

Focus on a business strategy that addresses distribution control. Whether your product is $2 or $10 per unit, the nature of food and beverage items is that they are low-dollar, high-volume products. You have to sell a lot of units to be successful and if you don’t maintain control of your distribution, you can end up competing against yourself on retailers like Amazon. (I wrote more about the problems with reselling on Amazon in my article “Read This Before You Become an Amazon Reseller”.)

Protecting Your Food or Beverage Business

When it comes to protecting your business in the food and beverage industry, there’s no one-size-fits-all approach, but you certainly don’t have to go the traditional business route of applying for a patent. There are plenty of surprising ways you can ensure your business is both protected and successful for the long-haul.