For any business owner, brand protection will be a high priority but with the vegan market growing each year, finding a way to ensure your brand stands out from the crowd has become increasingly important.
There are several intellectual property rights which, as the creator of a brand or product, you can register and protect. This article focuses on one in particular: registered trade marks.
What can I trade mark?
Trade marks can be used to protect a wide range of identifying marks including:
- words, such as your company or product name
- logos and artwork used in your branding or packaging
- numbers and letters (e.g. “501” jeans, “RBS” bank)
- slogans and tag lines used in advertising (e.g. “Every little helps”)
- the shape of your product or packaging (e.g. the Coca Cola bottle, Toblerone)
- colours used in your branding or packaging (e.g. Heinz turquoise)
Trade marks can even be used to trade mark made up words. For example, a company named Bute Island Foods has registered the word “Sheese” in relation to cheese substitutes.
What can’t I trade mark?
In order to gain protection, the mark must be distinctive and must set your goods apart as from others. If the mark is merely descriptive of the goods and services you provide, then it will not meet the requirements for registration.
In August 2017, US company The Herbivorous Butcher attempted to trade mark the words “Vegan Butcher”. The application was refused by the US registry due to being “merely descriptive”. Six short weeks later, Nestle made an application for the same mark and their application was granted. The Herbivorous Butcher have opposed Nestle’s application and vowed to fight to be allowed to use “Vegan Butcher” in relation to their own brand. The opposition is likely to rumble for some time resulting in high legal fees for both parties.
In the UK, if your mark meets the basic criteria then the registry will not reject your application just because it conflicts with a pre-existing mark. However, they will notify other UK mark owners about your application and invite them to file an objection if they wish. A pre-application search of the registers can help anticipate potential objections and avoid unnecessary costs.
What are the benefits?
Once registered, the owner of a trade mark has an exclusive right to use the mark and can take action against those using similar or identical marks without permission more easily than if the mark was not registered.
Using the mark for “Sheese” as an example. “Sheese” could have fallen into common use to describe any non-dairy cheese substitute. By registering “Sheese” as a trade mark, Bute Island Foods have not only secured their own right to use the word, they have also ensured they are able to prevent other vegan brands from using the word to describe their cheese alternative products. By doing this they ensure that “Sheese” is recognisable as their product, which gives greater value to a licence of the trade mark to others, for example, Kettlechip’s new “Sheese and onion” crisps and Papa John’s “Sheese” pizza.
If your mark is important to your brand, securing trade mark protection for it should be high up on your list of priorities. Filing fees in the UK are lower than in the EU and, assuming you don’t encounter any objections, registration can take as little as 3 months. If you are interested in learning more about how to trade mark your brand or you need help with licencing any of your existing rights to third parties, please get in touch.
About the writer: Sarah has been vegan since May 2016 and is a voluntary member of the Vegan Society’s International Rights Network.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.