Trademarking for Food Products
Cheez-it, Pillsbury, Mrs. Butterworth’s, POM Wonderful, Clif Bar, Manwich, Cheetos, and Velveeta Cheese, are among the countless trendy brands that sell food products that you’ve likely seen on the shelves of supermarkets all over the world. They’ve done their homework, trademarked their brand, and made a name for themselves in the food and beverage space.
You’ve likely landed on this article because you have crafted a one-of-a-kind recipe that is unparalleled and drool-worthy, and we’re here to help you on your way to becoming the next Nestle. For starters, hats off for taking the initiative and scoping the web to get clearer on your direction. Trademarking is an essential step to helping your business grow and thrive in the saturated world of food products.
But here’s the caveat–you can’t trademark food products in most cases. So what can you trademark to ensure no one steals your unique food product ideas?
Food Product Trademarking 101
A trademark is a legally protected word, name, design, logo, or another symbol of your product or business. To paint a picture–Cheez-It is a brand that makes cheese-flavored crackers, Oreo is a brand that makes cream-filled cookies, and Clif Bar is a brand that makes protein-packed, nutrient-dense snack bars to give you fuel while on the go. But anyone can technically replicate the ingredients of these food products, smack a new label on it, and call it their own.
Oreo’s logo and name, Cheez-its logo, and title, and Clif Bar’s logo and name are trademarked and protected. So long as they are trademarked, you can’t use their logos or names to promote your food products. While you might not be able to sell products using the name Oreo, you can sell similar products to Oreo using a different name. Similarly, two completely separate entities could have the same mark without actually competing with one another.
For instance, a business called Buzzworthy could make coffee, and another with a similar name or even the same name can make a lotion that gets you buzzed. This wouldn’t be a topic of concern because consumers of either product are likely not to mix the two up or associate them with each other. Two names with different products can coexist, so long as they are registered in different trademark classes. In other words, food trademarking does not prevent competitors from using the recipe, though it does prevent them from marketing it and calling it by the name or mark you decide to trademark.
Huh?
Put simply, you cannot trademark a flavor as intellectual property, as it is deemed a non-essential functional aspect of the product itself. You can try to trademark a recipe, but it is beyond challenging and more often than not worth the time and effort to go through such an ordeal. With so many variations of similar meals and food combinations spread across the globe, it is very tricky to create something that is novelty and non-obvious. Developing a recipe that is both tasty and worth a patent is like throwing a hot dog down a hallway–there’s more space for failure than for success, and you’re probably not going to get very far.
The USPTO breaks down a recipe into three things, which justify and define whether your formula can be patented. These include the ingredients themselves, the processes these ingredients undergo, and the resulting dish that is created from the combination of these ingredients. Those with the reins to patent are on the lookout for something completely unexpected and shocking. Surprising foods are considered more novel inventions, and if the final food creation is up to par, it is more likely to get patented. But fret not–there are more valuable ways to spend your time to ensure your food products are protected than going through the ringer to get your recipe patented.
One way to protect the recipe itself–such as the Krusty crab’s secret Krabby patty formula–is through the power of trade secrets. A trade secret is a way to keep your recipe from spreading, in the form of a legally binding agreement between the cook and the inventor, and sometimes even employees. Signing said trade secret means those who come into contact with the recipe formula are sworn to secrecy and must keep the information confidential. This is one way to protect the recipe, though, with all the scientists and chemists there, there’s no real guarantee others won’t be able to replicate it after trial and error.
So what else can you do?
Things You Can Trademark Related to Food and Beverage
You can create a mark to help consumers distinguish and identify your edible products for your competitors. Food trademarks are often seen as a design, name, symbol, logo, or combination of these elements. Let’s take In-N-Out for example. They feature a product mark and service mark you’d likely recognize. They have a trademark to designate their fast food products and a service mark denoting the fast-food service of the restaurant. The animal style sauce from In-N-Out is also trademarked. Additionally, product packing for the food you want to protect can be secured with a design trademark to complement the utility.
Aside from trademarking a mark to classify your food products, you can trademark other aspects that might not seem so apparent on the surface. Trademarking food products sometimes means registering the food shape, the shape of the packaging, or both. You see this a lot in candy bars, such as the famous breakable KitKat bars or Sour Patch Kids. Heinz’s ketchup bottles also have a signature funky-shaped bottle. In other words, it is possible to trademark a food item, or its other unique elements, if you intend to use it for branding.
The primary class you’ll apply for to trademark your food product is likely Class 30, though other categories might be more applicable in some cases. Class 30 is a broad class for staple foods and includes a range of food and beverages. It does not cover processed food, meats, alcoholic drinks, and other food-related items. It is best to consult with a trademarking expert to understand which classes are suitable for you and your brand, product, or service.
If you own a food joint or plan to open a restaurant and sell your food, you’ll need to also apply to trademark your food services, which would be Class 43.
Other Food and Beverage Related Classes
- Class 29 – Meat, fish, poultry
- Class 30 – Includes many types of food, drinks, and cooking ingredients, among them coffee, tea, cocoa, rice, tapioca, flour, bread, pastries, sugar, honey, mustard, vinegar, sauces, condiments, etc.
- Class 31 – Grains, Agriculture
- Class 33 – Alcoholic Beverages
Remember that when trademarking, you need to include a specimen in your trademark application. Acceptable samples include labels, tags, containers for the items with the trademark visible, etc.
Trademark Erosion
Over long periods of use or frequent exposure to specific products, we begin to associate the product itself with their brand and might even call the invention by the brand name. This demonstrates that there are products that become so widely used that the brand name essentially becomes synonymous with the product itself—what has been coined trademark erosion. A perfect example is Jell-O, a gelatin dessert and registered trademark of Kraft Heinz that became a massive sensation in the 1920s and 30s. Because of its wild popularity, supermarkets have genericized the term, using jello to describe all gelatin on their aisle lines.
Laundromat, trampoline, taser, xerox, jacuzzi, crockpot and zipper were all once trademark brand names but became genericized due to trademark erosion. When a brand name becomes inseparable from the product, it becomes a common name and, as a result, can no longer be registered. Becoming a household name might seem exciting on the surface, though many companies try to prevent it, for you won’t be able to trademark in the future.
Pink Sauce Food Product Fail
If you’re following up with any TikTok drama lately, you’re well aware of the Pink Sauce fiasco. This is the perfect example of what not to do regarding marketing and growing your food brand. The Pink Sauce creator Chef Pii became an overnight viral sensation for her vibrant magenta edible pink condiment, which resembled the color of Pepto-Bismol. The ingredients of her magic sauce supposedly consisted of dragon fruit, honey, sunflower seed oil, chili, and garlic, but it also contains less than 2% milk, lemon juice, and citric acid. Her explosive popularity seemed unstoppable for a short while; though she had not been adequately trademarked, nor was it FDA approved.
Unfortunately for “The Pink Sauce lady,” as the internet has titled her, internet trolls and foodies discovered that she not only did not have a defined recipe for her condiment but also used milk products yet did not refrigerate upon delivery which created a contaminated supply. While her food product was ultimately an epic fail, if everything did go smoothly, she should have taken proper steps to secure her brand and trademark her brand name and logo design from the get-go.
We hope you found this information useful and have narrowed in on next steps for protecting your food concepts and brand! If you would like to consult with one of our trademark experts to get the ball rolling, don’t hesitate to give The Trademark Factory a call.
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