When starting a company or even a new branded product, trademark protection is a standard investment that you make in the endeavor.

Why Should I Invest in Trademarks?

A registered trademark confers powerful benefits to the trademark owner:

  • It creates a legal presumption of nation-wide ownership of a mark, negating a competitor’s infringement as a case of innocent use.
  • Trademark owners can bring infringement cases into federal court and are eligible for monetary remedies
  • It will be an obstacle to the registration of confusingly similar marks submitted by third parties.

How Are Trademark Applications Different for Food Businesses?

Trademarks for businesses in the food space are challenging. 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 are to one another, the more likelihood of confusion there will be.

The sheer number of products and companies and brands in the food space means that there are lots of similar goods bearing lots of similar trademarks. While there are comparatively a small number of trademarks associated with optical lens manufacturers, deep-water drilling equipment makers, or high explosive munitions manufacturers,  there are thousands and thousands of trademarks in the food space. This makes the trademark competition among food business 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, such as a brand name that includes the use of the word “heart”, or by using 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 can unintentionally cause the brand to make a disease claim. Such a claim could subject the product to any of the consequences covered in our food labeling article. 21 C.F.R. 101.93(g)(2)(iv)(A).
  • A mark that conveys the impression it contains ingredient which is defined by a standard of identity, when in fact the food does not.

What’s in a Trademark Consultation?

We’ve got a robust trademark practice and our standard trademark consultation consists of five parts:

  • Thorough research of the Trademark Electronic Search Service for trademarks with the potential to conflict with the client’s proposed mark.
  • Drafting a memorandum of availability (MOA) on the proposed mark, which identifies all issues with a potential to impact the application, such as a likelihood of confusion with previously registered marks or a descriptiveness refusal.
  • A follow up consultation with the client that discusses the details of the memorandum of availability.
  • Filing the mark, should the client determine that it is worthwhile to do so after discussing the memorandum of availability.
  • Monitoring the mark as it makes it way through the application process.

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

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