Trademark Protection for Food Brands

If you manage or own a food brand, trademark protection is an essential investment, even if you are just starting out. Trademarks for businesses in the food space are challenging, with thousands of brands competing for similar goods. The Food Law Firm’s team of experienced trademark attorneys—who have handled 1,000+ trademark matters—can put together solid trademark applications with a high probability of achieving registration. A full trademark consultation usually takes 2 to 3 business days, from first consultation to filing the application.

A registered trademark confers powerful benefits to the trademark owner. Some of the biggest benefits include:

• Trademarks create a legal presumption of nationwide ownership of a mark, negating a competitor’s defense of innocent use.
• Trademark owners can bring infringement cases into federal court and are eligible for monetary remedies.
• Registering your trademark is an obstacle to the registration of confusingly similar marks submitted by third parties.

The Food Law Firm has a robust trademark practice, and our standard trademark consultation consists of five parts:

1. Thorough research of the Trademark Electronic Search System for trademarks with the potential to conflict with the client’s proposed mark.
2. Drafting a memorandum of availability (MOA) on the proposed mark, identifying all issues with the potential to impact the application—such as a likelihood of confusion with previously registered marks or a descriptiveness refusal.
3. A follow-up consultation with the client that discusses the details of the memorandum of availability.
4. Filing the mark, should the client determine it is worthwhile after discussing the MOA.
5. Monitoring the mark as it makes its way through the application process.

We advise our clients to repeat this process for each new brand, prior to launch if possible.

A new food brand must not infringe on any existing marks. Infringement is determined by comparing the wording of competing trademarks and the types of goods on which the marks are used—the more related the goods, the more likelihood of confusion. The sheer number of products, companies, and brands in the food space means there are lots of similar goods bearing lots of similar trademarks, making trademark competition among food businesses more fierce than in most other industries.

In addition to previously registered trademarks, food laws and regulations are intrusive enough to impact the trademark you choose. Trademarks that include any of the following elements will not be allowed on a food product by operation of FDA, USDA, or TTB regulation—even though they may be capable of achieving trademark registration:

• A trademark that creates a health claim, either expressly or by implication—for example, a brand name that includes the word “heart,” or a graphical depiction of a heart in a logo.
• Supplements that purport to have an effect on a disease or condition in the name or brand of the product. These marks can unintentionally cause the brand to make a disease claim, with consequences covered in our food labeling work. See 21 C.F.R. 101.93(g)(2)(iv)(A).
• A mark that conveys the impression that the food contains ingredients defined by a standard of identity, even when it does not.

Trademark questions often surface in tricky niches. See our work on CBD & cannabidiol products (where lawful-use registration is especially difficult) and private label agreements.

Last reviewed: June 2026.

Jason Foscolo Founder of The Food Law Firm — fractional general counsel for food & beverage businesses nationwide.

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