How to Choose a Strong Trademark in the Snack Food Industry

By Eric Perrott, Esq.

Strong trademarks and branding are key to a successful snack product. In 2018 alone, snack food was a 42 billion dollar industry in the United States. Needless to say, U.S. consumers take their snacking seriously, and unlike a lot of other industries, snack foods are typically still bought in brick-and-mortar stores rather than online. As a result, consumers are making split second decisions based on what they already know about a snack and through a snack’s branding. Without strong branding supported by a robust trademark strategy, a snack food company, whether new or well established, could run the risk of losing its competitive edge in an increasingly difficult market.

Whether you have an innovative snack idea or perfected a classic, even if it is the most delicious and fun stack ever created, it is unlikely to gain a piece of that 42-billion-dollar market without good branding. The primary way to protect a brand is through registering it as a trademark with the United States Patent and Trademark Office.

Selecting a solid brand name for a product is not easy. Companies have entire marketing divisions dedicated to designing names and packaging, and there is an entire industry of consultants who specialize in food branding. However, once you arrive at the name and packaging that tells consumers about the product, while being distinctive enough to “stick” in their minds, the job is still not done.

A strong trademark is an exclusive trademark. The first step once you’ve developed a name is to see if anyone else in the marketplace is using a similar name for related goods and services.

The Importance of a Comprehensive Trademark Search and Analysis for your Food Product Name

Before you launch a new product, you should consider whether a confusingly similar trademark exists for related products (or services) already in the marketplace.

Notice that the standard is not an exact name for identical products (or services). Trademark law prohibits trademark owners from using a confusingly similar trademark for related goods and services. Whether a mark is confusingly similar depends on the situation.  For example, if your trademark is PINGLES for a snack chip, you are likely infringing on the registered PRINGLES® mark, even though the names are not identical.

However, identical trademarks can co-exist for “unrelated” products and services. For example, DOMINO’S pizza and DOMINO sugar have co-existed for many years. Finding this line can be difficult, though, and requires legal analysis in order to determine whether another trademark is for a product similar to the product you would like to register.

A trademark attorney can provide a trademark search opinion based on a comprehensive trademark search, which looks for trademarks that are similar in sight, sound, meaning, or overall commercial impression for related products and services. The attorney reviews the exhaustive research of the US Patent and Trademark’s database and the marketplace to provide you with an analysis of the risk level. This allows the attorney to review the mark in context, taking into account the marketplace realities and any pre-existing registrations that could be problematic for your use of a new name for a snack product.

Selecting a Snack Product Name and Varying Degrees of Trademark Protection

Another consideration is whether the trademark is even protectable in the first place. Generic names for food products are not protected under trademark law, such as “Potato Chips” for a brand of chips or “Pretzels” for pretzels. No matter how much money a company spends marketing a name that is generic, it will never be able to claim exclusive trademark rights in that name.

Furthermore, names that are not generic but describe the product cannot be protected until the owner can show that the public connects the name to a single company. For example, although the American Heart Association is an association in America raising awareness for heart disease, most U.S. consumers know that those descriptive words describe one association. “Windows” may have once been descriptive of an operating system that allowed users to open “windows” in a graphic interface, but now it is widely known as a trademark of Microsoft.

Many marks suggest a particular good or service to the user, but require consumers to take an extra logical step to connect the trademark to the product. “Mr. Clean” for cleaning solutions, “Microsoft” for small software. These marks are immediately protectable and still give consumers some context for identifying the product or service. For example, “Moretilla” as a brand of corn chips may be suggestive of the word “tortilla” but it is not immediately obvious.

The strongest marks are arbitrary or fanciful, meaning they are either completely unrelated to the product or service (BLUE BIRD for ice cream) or made-up (KODAK for film).

Deciding on a trademark is a significant first step toward developing a strong, long-lasting brand. Once you’ve analyzed your name, you should have a plan in place to register the trademark and protect the mark from use by third-parties.

By taking the time to properly analyze your snack food trademark early on, you are establishing a solid foundation to ultimately ensure your snack joins the pantheon of snack food brands ingrained in the cultural fabric of the United States.

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Eric Perrott, Esq.

Eric Perrott, Esq. is a trademark and copyright attorney committed to providing high-quality legal services for any sized budget. Eric’s ability to counsel clients through any stage of trademark and copyright development and protection allows him to provide his clients with personalized advice and unique analysis. Eric can be reached directly at: eric@gerbenlawfirm.com. The contents of this blog are for informational purposes only and may not be relied on as legal advice.