Brand Protection and Strategy for Food and Beverage Companies

Post-pandemic, food and beverage companies must now navigate a recessionary environment and runaway inflation. Thus, building, maintaining, and enforcing strong brands are more important than ever if a company is to maintain and grow its market share. The following guidelines are intended for the food and beverage industry but can be applied across many industries.

Robust Enforcement

Enforcing intellectual property rights in a digital, global world requires strategy and know-how. Modern technology allows thieves to misappropriate large amounts of intellectual property assets in an extraordinarily short period of time. Further, infringement of intellectual property may often take place outside of America. Such cross-border issues necessarily increase the complexity and expense of the enforcement effort because of jurisdictional differences, venue challenges, conflict of laws, and witness location issues.

Without proper enforcement, a business can diminish the strength of its intellectual property rights. The strength of a trademark, unlike almost any other asset, can be increased or decreased in value depending upon whether the owner of those rights successfully and consistently enforces those rights. For example, a trademark owner of several soda brands who fails to differentiate itself from a competitor’s products essentially gives away some of the strength of their trademark in their soda brand(s). Conversely, a trademark owner who consistently polices its rights, strengthens its rights in its trademark. Infringement and enforcement efforts are highly fact specific and often require the assistance of seasoned trademark counsel, but an understanding of how trademark assets differ from other assets is important for maintaining and growing rights in the brand.

Risk Mitigation

Businesses in the food and beverage industry must consistently review all advertising, social media, and packaging to ensure that they are not infringing upon any other company’s IP rights. And, if it appears that IP rights belonging to any other company are used on advertising, packaging, or social media pages, the business must secure all required licenses to use such rights. The business should also carefully negotiate and draft its contracts in a way that maintains the strength of the company’s intellectual property rights and guards against the risk of liability from infringement.

Protection Strategy That Aligns With Overall Company Goals 

The C-suite and its in-house legal team must align on a consistent, strategic, brand protection program that supports the overall goals of the business. The success or failure of enforcement efforts necessarily turns on whether a business has adequately protected and maintained its intellectual property assets prior to receiving any allegation of infringement.

Investment in the selection, clearance, and protection of intellectual property is imperative. Since no company has a limitless budget, management should prioritize IP assets and the budget for selection and maintenance of the same, based on strategy, market share, or other critical factors. A service often overlooked is trademark monitoring. IP assets may only be enforced if the company is made aware of an infringing trademark. Monitoring services are available to alert the business to new applications or publications that may be infringing on the company’s trademark rights.

Brands are the lifeblood of food and beverage companies. Successful enforcement of those brands depends on strategic planning, consistent protection of the brands, protective contracts, beneficial licenses, and risk mitigation.

Clark Hill’s Intellectual Property team is ready to assist food and beverage companies in protecting and enforcing their brands and maintaining and growing their brands.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.

For further information, please contact the author, Natalie A. Remien at nremien@clarkhill.com.