IP RIGHTS AND FOOD STARTUPS

Introduction 

Food industry is one of the largest industries in the world. It is the most competitive industry as thousands of businesses are trying to stand-out in the market. In order to stand out in the huge competition, food industries are focusing more and more towards intellectual property protection as a key factor for dominating the industry. Intellectual property can help startups and act as differentiator to stand out in the industry.

Intellectual property is connected to food industry in multiple ways and it gives tools to protect their intellectual property creation. There are several other intellectual property instruments which are underutilised so startups need to focus on these instruments to get the competitive edge.

IPR in food startups 

Protecting intellectual property in food startups have a commercial value. They can be used in food industry in following ways:

Trademarks

According to section 2(m) of Trademark Act, 1999, mark is defined as “device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.” And trademark is defined under section 2(zb) of the said act as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.”

A trademark is a nonfunctional sign which is used by business to differentiate their goods and services to that of others and it gives identity to startups and businesses. It also protects shape of goods, packaging and colours as it is clearly mentioned under section 2(m) of the said act. Businesses are also trying to secure trademark protection for non-conventional marks such as sound marks, olfactory mark or on flavours etc but it comes with its own challenges but if food startups will get a trademark on non-conventional marks, then it can be very advantageous for them.

Trade dress is a sub-category of trademark which can include protecting products appearance which means protecting its design, colour, packaging as it can also differentiate them from other goods and services and it can create a secondary meaning in the mind of consumers, thus, it’s a powerful tool for any food star-up. A good example of this can be trademark protection granted to Coca-Cola on the shape of bottle. But getting a trade-dress protection is not that easy and it require high standard of originality.

Thus, there are various advantages of registering trademark for any food as startup. Start-ups can register name or logo of its brand as well as unique names of its food items as it will give them monopoly over that mark or trade dress and this mark will give it a different identity which will help in building brand reputation and goodwill in the food industry, along with this it will prevent others from infringing your trademark. Trademark helps in building consumers loyalty as it acts as brand differentiator.

Copyright

Section 13 of Copyright Act, 2013 lists the works in which copyright subsists, according to which, copyright can subsist throughout India in “original literary, dramatic, musical and artistic works, cinematograph films and sound recording, subject to other provisions of this act.” Once the original work is created, it automatically gets copyright protection, subject to any other employment agreement but it is advisable to register the copyright work as it will act as evidence establishing ownership.

When it comes to food industry, it is difficult to register recipe and generally it is not granted protection as it becomes difficult to prove that one is original creator of that recipe. It should be noted that the mere identification of ingredients required for a particular food is factual and not copyrightable, but related written expressions may be copyrightable. In the food industry, blogs, websites, cookbooks, creative food presentation and more can be protected. Copyright protection is given for longer period than any other IP rights. The duration of copyright is for the creator’s lifetime and 50 years after death, after the expiry of this period, copyrighted material will fall under the public domain. 

Patent

As per section 2(1)(m) of Patent Act, 1970, “Patent means patent for any invention granted under this act.” Invention as per section 2(1)(j) of the said act includes new product or process which have inventive steps and which is capable of industrial application. Invention must be new i.e, it has not been anticipated or used elsewhere. Filing a patent gives rights to inventor to exclude others from using and selling the invention for 20 years.

In food industry, one can come up with the invention of process of freezing ice-cream or to ensure longer melt time and they have to prove that the invention is novel and non-obvious to person who is working in the field of invention.

Trade secret

As the term suggest, it’s a secret information which is with few people in the organisation. So, it not registrable like any other intellectual property rather, you will have to take proper precautions to keep it secret. This can include specific ingredients, measurements, processes involved and recipe. There are various food companies who have trade secrets, some of the prominent examples can be Coca-cola’s soda formulae, KFC’s 11 herbs and spices.

Trade secrete can be a valuable asset for food industry and especially for startups to grow and stand out in the highly competitive market. Though to keep it as a secret can be a difficult task, can pose scalability challenge as very few people know about it and costly as well as it may require good internal system for maintaining secrecy. Though as a part of legal regulations, there is requirement of disclosure of ingredients but it doesn’t include the disclosure of entire recipe.

Conclusion   

Registering and focusing on intellectual property is paramount for any startup. Determining which intellectual property to register and leverage as an asset depends on what is crucial for the startup, be it branding, recipes, labelling, or customer loyalty. IP protection not only safeguards creations but also enhances market position, brand reputation, and consumer trust. By strategically utilizing trademarks, copyrights, patents, and trade secrets, food startups can secure a significant competitive edge in the dynamic and competitive food industry.