24 May 2021
Veganuary has been and gone, but there’s no better time to discuss the plant-based meat revolution. 2020 saw a huge rise in consumer demand for vegetarian and vegan options, and a particular surge in the growth of alternative protein sources.
Supermarkets, restaurants and cafés are dedicating more resources towards plant-based, meat-free options to accommodate shifting consumer preferences. Most recently we’ve even seen McDonald’s make its first foray into plant-based meat alternatives – 2021 has seen the launch of its McPlant line, developed in conjunction with US-based plant-based meat producer Beyond Meat.
Whether consumers are dabbling in plant-based preferences or in it for the long haul, one thing is clear – they’re demanding authenticity, transparency and integrity from the brands they choose to support. It's clear that brand protection will be central to the long-term viability of businesses looking to get a piece of the (quite substantial) plant-based pie.
While this article is focused on identifying issues specific to the life cycle of plant-based meat products, many of the tips below are – of course – applicable to businesses operating in the wider food and beverage industry. Below are some easily digestible pieces of advice to take away…
Clearance searches
One aspect that should be considered at the earliest possible stage is whether the trade mark you want to use is:
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Available; and
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Capable of registration.
Once you have worked out the desired territories and the goods that you want to claim protection for, clearance searches can be carried out to check whether there are any similar or identical trade marks that have already been registered for the same or similar goods. These searches will also consider whether there are any unregistered rights you need to be aware of.
Relevant but unrelated searches are checking the availability of a domain and business/company names. Availability of a domain and business name doesn’t necessarily mean there is no risk of infringement though – so it makes sense to do this in conjunction with trade mark clearance.
The small investment in these searches is a hugely valuable tool in identifying and managing risk before spending time and money promoting a new brand.
Keep schtum
Depending on the nature of the plant-based food being launched, it is a good idea to keep the product under wraps until your preferred domain name has been registered, the intended business/company name is locked in, trade mark protection has been applied for in at least one country of interest and if applicable, patent applications have been filed.
Trade mark applications
By applying for a trade mark in one country, businesses can take advantage of a “priority” claim for applications for the same mark in most other jurisdictions that are likely to be relevant within six months – a useful tool which will facilitate the backdating of any trade mark rights in the new jurisdiction to the filing date of the initial application.
For those that have already been in operation for a few years, it’s a good idea to do an audit of any pre-existing trade mark protection and consider whether new applications need to be filed so that the IP portfolio is up to date and accounts for any brand refresh/new products.
Watching services
Once IP protection is in place, it’s crucial to monitor on an ongoing basis and make sure there’s no infringement or inadvertent failures to renew that protection. Your IP advisors can put “watching services” in place to mitigate the risk of missing renewal deadlines or third parties taking advantage of your IP.
Exercise caution with health claims, labelling and comparative advertising
There are obvious comparisons to be drawn between conventional meats and plant-based alternatives, but it's important to only make claims that are 100% accurate and able to be substantiated. If considering a comparative campaign, make sure that the products being compared are reasonably similar, and that the comparison will be valid for the life of any promotion.
Similarly, it’s crucial to exercise quality control measures to ensure that the product being manufactured is consistent across the board – something to consider in any agreements with third parties if you decide to licence or franchise a brand down the line.
Position your brand for success
Whether you’re involved with a new or established enterprise, there’s a multitude of reasons to make brand protection central to the marketing strategy. The related but more developed plant-based milk sector has given companies a blueprint for how to leverage IP rights to set themselves up for success – not to mention add value to their business and make it highly attractive to investors. We promise you won’t regret the initial investment!
For further information, please contact:
Kellie O'Flynn, Associate, Bird & Bird
