Date: Mar 17, 2003
Devising an effective branding strategy for food products can often take years and involve just as much effort as developing the products themselves. Trademarks are, of course, an integral part of any food company's branding strategy, but success at the United States Patent and Trademark Office (PTO) is not the only hurdle food companies must jump. Food trademarks, advertising slogans, and marketing campaigns may implicate Food and Drug Administration (FDA) labeling laws, the U.S. Department of Agriculture's National Organic Program(NOP) requirements (or related Environmental Protection Agency (EPA) rules on pesticides meeting the NOP criteria) , and Federal Trade Commission (FTC) rules on advertising and marketing. Food companies often have a few basic questions about how trademarks relate to other regulatory requirements. The following are some practical tips for companies involved in all aspects of the food industry - from seed companies, to growers, to food processors, to retailers - to consider when selecting trademarks and developing a branding strategy for new food products:
While PTO examiners have the authority to refuse a mark if it is "misdescriptive," trademark examiners rarely have sufficient time or information to determine if a food product or trademark violates FDA or USDA requirements. More often, problems are identified by competitors and challenged before self-regulatory bodies like the National Advertising Division (NAD) of the Council of Better Business Bureaus, or investigated by the FTC, FDA or USDA.
Another important consideration for food companies relates to decisions about where the products will be marketed, either directly or through license agreements. The U.S. recently signed onto an international agreement, the Madrid Protocol, which should offer a convenient and cost-effective way to seek trademark protection in multiple jurisdictions. Some 53 countries have now ratified the Madrid Protocol, including many countries in the EU, Japan and Australia, although, notably, Mexico and Canada have not yet ratified the Protocol. U.S. accession is significant, since Madrid applications must be made by companies based in a Madrid Protocol country. The first Madrid applications could be available as early as November, 2003, and Madrid registrations are well worth considering for food companies likely to enter different markets.
By being mindful of the above tips, food companies can limit potential pitfalls in selecting trademarks for use with new products while increasing brand value in the marketplace.
For additional information about how we can help your food company select trademarks or if you have other trademark questions, please contact Sheila A. Millar at (202) 434-4143 or via e-mail at Millar@khlaw.com.