July 5, 2023

Food, glorious food…with a twist of IP


First published in Bay of Plenty Business News July 2023 edition

Food, glorious food!

Hot sausage and mustard!

While we’re in the mood —

Cold jelly and custard!

Peas, pudding and saveloys!

What next is the question?

So sang Oliver and his fellow workhouse orphans in the timeless classic, Oliver!

The same or similar words may have been (but most likely were not) uttered more recently, in somewhat different circumstances, by attendees of Fine Food NZ 2023 in Auckland, where I had the privilege of presenting a seminar on using IP rights to maximise competitive advantage.

My seminar addressed three topics:

(a) How creative thinking from the start can get you ahead (a recipe for success);
(b) How ongoing creative thinking can keep you ahead (a recipe for continued success); and
(c) The dangers of ignoring the power of IP (a recipe for disaster).

In this issue’s article, I summarise my presentation on the first topic – how creative thinking from the start can get you ahead.

When it comes to food (and beverage) products, broadly speaking there are three drivers of creative thinking: customer needs – the needs of, for example, supermarkets; consumer needs – the need to meet, for example, changes in consumers’ palettes; and business needs – the need to survive and thrive in business. In meeting all three needs, a well-crafted intellectual property strategy can help maximise the potential of your business.

So what do you need to consider in crafting an IP strategy for a food (or beverages) business? My suggestion is to consider, from the outset:

(a) What IP assets (rights) might be available to you – in NZ and overseas if you plan to export – and how to acquire them;
(b) What registrable IP assets do you want to acquire;
(c) What registrable IP assets do you need to acquire; and
(d) When can, do or must you acquire your IP assets.

In my experience, the most common registered and unregistered IP assets that are available and are used by businesses in the food and beverage industry are trade marks (registered and unregistered), industrial copyright (unregistered), designs (registered), get-up (unregistered) and trade secrets (unregistered) (for example, recipes).

Of these, registered trade marks (more specifically, certain types of registered trade marks) and registered designs are currently significantly under-utilised in New Zealand.

In relation to registered trade marks, most, if not all, businesses will be aware that you can register words and logos as trade marks, but how many are aware they can register three-dimensional shapes, colours, smells and even tastes as trade marks and, more importantly, seek to do so?

Judging by the relatively small number of shape and colour trade marks on, and the complete absence of smell and taste trade marks from, the New Zealand Trade Marks Register, my guess is not many – which means a lack of awareness. Either that or the reason is a lack of willingness due to the potential cost of acquiring registration, which can be (but is not always) significant. My personal guess is the former.

As for registered designs – which are available to protect the shape, configuration, pattern or ornamentation of physically manufactured items, these appear to be equally under-utilised by food and beverage businesses. Again, the issue could be a lack of awareness or a lack of willingness, again perhaps due to cost. Registered designs do not cost very much to acquire, however, which suggests lack of awareness rather than cost is to blame.

Whether awareness or cost is the culprit, I encourage businesses in the food and beverage industries to make themselves aware of and engage with the opportunities to acquire registered IP assets that are available to and used by them – no matter how tricky it might be to register them. By doing so, they may acquire competitive advantages that will get them ahead, and aid them to stay head, of their competition.

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