Food law expert on developing a strong IP: “Investment needs to start early”
IP includes intangible creations of the human intellect, with the best-known types being patents, copyrights, trademarks and trade secrets.
“Trademarks and patents, for many, are only heard of in passing or not at all at the start of a career in food law or scientific and regulatory affairs,” Tallon told NutraIngredients.
However, with the development of protected designation of origin (PDO) and geographical indications (GI)—protecting product names from misuse or imitation—and some headlining trademark cases, he said food businesses are becoming more aware of the risks and rewards of holding a strong IP portfolio.
"IP is part of every business," he explained. "What is often ignored are issues of possible infringement when developing new products or even the marketing surrounding them—use of ingredients and related claims that may be patented; product names or brand names that may form part of a registered mark; or simple issues of the flavour of a product that may be owned by another, such as Jammy dodger flavour.
“As an example, the Lotus Bakeries company makes its famous caramelised Lotus biscuits. Whilst companies may be free to use the term 'caramelised biscuit flavour', the use of the Lotus biscuit shape is registered. Some companies have jumped on such relationships, and this year, we see co-partnerships between Trek Protein bars and Biscoff spread as well as imagery of that Lotus biscuit.”
Noting the importance of this issue in the functional foods sector, Tallon said this industry is about "creating a unique selling proposition", adding that when it comes to attaining investment, IP can provide a means of demonstrating legal ownership of the company’s uniqueness.
"How much value is in IP will depend on the brand, but what is Coca Cola without that name? A chocolate orange that’s not round or can break into segments? What about the colour of wrapper?
"The investment needs to start early as the more success a brand achieves the more likely others will look to ride on their coat tails with similar goods and without protective the value of that brand can become blurred or tarnished.
"Think of brands like Prime, perhaps the first mass marketed 'hydration' brand for younger population, that flash success has resulted in a developing 'hydration' rush of copycats. Thus, a strategy for how IP is leveraged within a company’s lifecycle and the understanding of how its generated by its staff are key."
He explained that often companies only trademark their brand name, or they won’t attain a patent due to expense, and knowledge of the law can allow companies to consider how best to protect IP until they have the ability or finances to register it formally.
IP training
To help those in the functional food industry, Tallon has added a new module on intellectual property (IP) to his Certificate in Food Law (CFL) course.
"The new course is not just another generic IP course but is tailored to the specific challenges businesses face especially in the functional food space," he said.
The module aims to help provide a solid foundation in the five main IP challenges that regulatory and scientific affairs teams are exposed to, including patents, trademarks and passing off, designs, copyright and trade secrets.
"The aim of the new module is to ensure businesses can make an informed choice on how to assess their own and competitor IP before going to market or best practice following a challenge for infringement," Tallon added.
