Food products are subject to steep competition, especially with our culture’s ever-increasing interest in food and cuisine. Producers, manufacturers, and other artisans are continually fighting for shelf space and the attention of the consumer.  A great way to make your product stand out in the crowd is to brand smartly and trademark your product or company. If you’re in the food business, there are things associated with your company and product that you can trademark to set yourself apart from the others and other things you can’t.
You can trademark a company or product name, logo, or mascot.
Trademarks help to distinguish one company, product, or service in the consumer’s mind. A trademark must be unique and nonfunctional. Names, logos, slogans, colors, mascots, and the overall look and feel of the packaging (trade dress) can all be trademarked because they help create the idea in a consumer’s mind that one particular item out of many to choose from is different because it’s produced or made by a specific company.
You can’t trademark parts of the products themselves.
You can’t trademark material aspects of your food, like a texture or a composition if it is the generic or descriptive name. However, you can trademark the names of those things. For example, a company that sells peanut butter can trademark the names “smooth operator” and “bumpy ride” as descriptions of their creamy and chunky products, but it can’t literally trademark creamy or crunchy peanut butter. Likewise, a hot sauce company can’t trademark clear barbeque sauce (though it can patent the formula that makes the sauce clear), but it can trademark the name “Phantom Q.”
Can you trademark a scent or flavor?
You can trademark a scent, but it’s not easy, and the scent can’t be a functional part of the product. You can’t trademark a scent if your product is perfume or flavored lip-gloss, but you can if it’s not functional but still distinctive (able to distinguish your goods/services from another’s). For example, Play-Doh is trying to register a trademark for its signature scent. The scent isn’t integral to the toy, but it does distinguish it from other modeling clays. When it comes to food this is quite difficult since scents are generally integral to food because they come from the ingredients.
Likewise, flavors generally can’t be trademarked for food because they’re very much a part of the function of a food. After all, what’s the point of eating? However, if a unique flavor is either a part of or the goal of a recipe, you may be able to protect that recipe with a patent or by declaring parts of the recipe a trade secret.
You can’t trademark a recipe itself…
…but in some cases, you can patent one or keep it safe as a trade secret. An intellectual property attorney can help you determine if your recipe can be patented as a formulation. A formulation is a way of putting materials together to create something new. A formulation could be a chemical compound, a plastic polymer, or even a lunchbox snack; it just has to be novel, new, or unique in order to be considered patentable.
Our intellectual property attorneys can help you determine if you have something to trademark with respect to your food products and/or marketing materials.  If you would like to schedule a consultation, contact 888-666-0062.
 
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
 
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