A brand is a key component of a food company or product’s success. Rarely will a food product be the only one of its type on the market – in all likelihood, there are several other competitors selling a similar product, each with their own brand reputation and distinct qualities that set them apart to the consumer. Building and protecting that reputation in a crowded, competitive industry is just one reason that it’s important to register a trademark for your food product and company. The purpose of a trademark is to clearly identify the source or identity of a product and prevent confusion. This helps protect companies from losing business and consumers from spending money on products they didn’t actually want.
A trademark is a legally protected word, name, design, logo, or other symbol of your product or business. For example, “Oreo” is a trademarked product name. That means no one else can use the name “Oreo” to sell their cookies. Similarly, the Nabisco logo is trademarked and no one but Nabisco can use it. That helps consumers know which products are truly made by Nabisco and which are made by others. Trademarks don’t only protect names and logos. In some cases, you may be able to trademark a distinctive product shape, packaging shape and design, color, sound, and more. The issue is whether consumers find the trademarked characteristic to be distinctive and uniquely associated with your product or brand. If competitors could use it to trick consumers into thinking they’re buying your product, you may be able to trademark it.
What trademarks don’t do is protect recipes or formulations. Your chocolate chip cookie may be better than the one next to it on the shelf, which is why buyers keep going back to it – but your trademark protects that name (and logo or design) on the package that they keep going for, not the recipe itself. If you do wish to protect a specific recipe, trade secret protection is generally the best line of defense — a separate and distinct process from the trademark process that we’ll cover here.
Trademarks are managed by the US Patent and Trademark Office (USTPO). They keep records of all US patents and trademarks and you’ll need to register your trademarks through that office. The trademark registration process requires 3 steps: choosing a name, running a trademark search, and registering your trademark.
1. Choose A Name For Your Food Product
The first step in registering a trademark for a food product is coming up with a name for your company or product, or both. You’ll have to decide exactly how you want to market your product when you’re deciding what to trademark. Trademarks don’t apply to generic, descriptive terms, so you’ll need to choose something original. Think back to the chocolate chip cookies we mentioned above. You can’t trademark the name “chocolate chip cookies.” It’s generic and has nothing to do with your brand in particular. You need an original and uncommon name for your cookies if you want to trademark it. You can also separately trademark the name of your company.
The key thing to remember is that neither your company nor your product name can be overly descriptive of the product you’re selling. You can’t trademark “Cookie Making Company,” just like you can’t trademark “chocolate chip cookies.” The best way to get a trademark is to coin a completely new word or phrase for your company and your product. Keep your marketing goals in mind, too, as a good product or company name can make a big impact on consumers.
A completely original name gets the most significant legal protections under trademark law. You can also consider words or phrases unrelated to food and your food product, like “Keebler” or “Nestle,” or a name that suggests what the products contains, like “Chips Ahoy.”
2. Conduct A Trademark Search
Once you select a name, you’ll want to ensure that it’s not already in use for any similar types of food products, either as a brand name or a product name. The best way to do this is to conduct a thorough trademark search, checking for factors that the USPTO will consider when reviewing your trademark application. That means watching for things like similar spellings, similar-sounding names, potential logo or color scheme confusion for the same types of products, variations in spelling, capitalization, and spacing in a name, and anything else that, in the eyes of the USPTO, might prove confusing to the general public. An application for a chocolate sandwich cookie called “Oweos” and sold in blue packages is probably too close to “Oreos” for you to trademark. Not only will your application be denied, you could be on the hook for trademark infringement if the Oreos brand decides to sue.
For a trademark search, Google isn’t going to cut it. The USPTO makes some search tools available to the public, but they are prone to miss potential issues. Your best bet for a trademark search is an experienced trademark attorney. They have access to more powerful search tools and they know what to look for.
3. Submit Your Trademark Application
Once you’ve chosen the right name and you’ve worked with your attorney to make sure it’s original and unique, it’s time to actually submit a trademark application. On the application, you’ll describe exactly what kind of product you’ll be bringing to market. The USPTO has strict classifications for trademark registration and you’ll need to make sure your application is correct or they’ll send it back to you. The USPTO recognizes 34 classes of products; 3 of these are food categories. Your trademark attorney will help you with your application to ensure you choose the right category.
Your application will also include the specifics of your trademark. In addition to a name, you can include a logo, design, and certain types of packaging. Here again, you’ll need to work with your trademark attorney to ensure that your application is complete. If you miss any elements, they won’t be protected and your competitors can use them.
Getting USPTO Approval
Once you submit your complete and accurate application, the USTPO will review it. That process usually takes 6-8 months, although it may be longer if your application is sent back for correction or clarification. If your application is approved, you’re entitled to the full benefits and protections of a registered trademark. That means your trademarked names and logos are yours and yours alone. Congratulations! Of course, someone out there will want to imitate your product. You’ll need to monitor the market (or retain a monitoring service) to make sure that no one is violating your trademark rights.
Trademarks Across The World
If you’re planning to market your product to other countries, you’ll need to consider getting trademarks in those countries as well. Trademarks are registered separately in each country, so imitators across the globe could use your logo, designs, and name if they’re trademarked only in the US. Your trademark attorney can help you decide if you should pursue international trademarks.
Are you ready to trademark your product?
If you’re ready to protect your product name, logo, and other distinctive elements, contact an experienced local trademark attorney. Your attorney can help you avoid trademark issues and guide you through the trademark registration process. If you’re looking for more information about trademarks and trademark law or if you’re just curious, check out our other blog posts on trademarks.