Don’t forget to protect your business with a trade mark – Jason Chester

A brand has the potential to become the most valuable asset owned by a food and drink business, says Jason Chester

Jason Chester, a Chartered (UK) and European Trade Mark Attorney, Marks & Clerk

The Covid-19 pandemic has completely changed the Scottish food and drink landscape, and is likely to affect the way in which we buy, consume and experience food and drink for the foreseeable future.

Whilst Covid-19 has sadly created significant challenges for many food and drink businesses, there remains room for optimism. The ‘new normal’ has necessitated and expedited the need for businesses to innovate, diversify and adapt to capitalise on emerging opportunities and to meet new consumer demands.

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We have seen a growing number of bars, restaurants and shops utilise online delivery platforms or offer their own delivery and takeaway services in response to the restrictions imposed by lockdown. This has undoubtedly given many businesses an opportunity to showcase their products and brands to a bigger pool of customers.

Many businesses have focused on alternative methods to keep us interested in food and drink from the comfort of our homes. Examples include providing home cooking lessons, tasting packages and virtual tasting sessions, recipe boxes, gin and beer making kits, and disclosing recipes to enable us to recreate our favourite fast food items in our own kitchens, to name a few. Through offering diversified goods and services, businesses have opened up new revenue streams and, more importantly, kept their brands relevant and visible.

Distilleries have come to the aid of frontline workers by switching their production to hand sanitiser and some whisky distilleries have turned their attention to white spirits, such as vodka and gin. Many breweries and distilleries have experienced an upturn in online sales and exports, and are tapping into new overseas markets.

According to reports, more people are buying local, which has enabled some smaller businesses to grow – particularly in rural areas. Local businesses are selling and delivering fresh produce directly to consumers, rather than hotels and restaurants. Scotland Food & Drink is supporting local businesses by connecting consumers with local food and drink producers from around Scotland with its “Support Local” directory.

The implementation of mandatory physical distancing measures is forcing bars and restaurants to operate at significantly reduced capacity. The waiting times and queues suggest that the current capacity is unable to meet the demand. We could see the emergence of more pop-up bars, outdoor food markets and eating establishments. This presents a great opportunity for start-ups and emerging businesses to grow and develop brand equity. There are also some great collaboration opportunities. Prior to lockdown, BrewDog collaborated with vegan food brand Biff’s. BIFF’S X BREWDOG is an all-vegan bar in Dalston, which offers plant-based ‘junk’ food. What’s more it was recently announced that BrewDog is to launch vegan delivery hubs in Edinburgh and Glasgow as part of the collaboration.

Although brand protection may be a bit of an afterthought at present, it is important to review brand protection strategies when a business grows, diversifies its offering, taps into new overseas markets or collaborates with third parties.

Businesses should seek appropriate advice to undertake due diligence before launching a brand, expanding into new areas or overseas markets. For example they should conduct trade mark clearance searches to ensure that use of the brand does not infringe third party rights and also confirm whether the brand is available and eligible for trade mark protection in the jurisdictions of interest.

A brand has the potential to become the most valuable asset owned by a business so it is essential that brand equity is protected through trade mark registrations. They confer rights to prevent third parties from using or attempting to register identical or similar marks, as well as marks which may take unfair advantage of, or cause detriment to, the distinctive character and/or repute of a mark.

Trade marks can also be sold, can encourage investment and can even form the basis of a licence agreement. This enables a trade mark proprietor to set the terms for remuneration and control the way a third party uses its brand – a collaboration is an example of an arrangement that will typically require a license.

It is so important that trade mark, brand and business strategies align as the sector adapts and creates new opportunities. Doing so will provide the best chance of thriving once again.

Jason Chester, a Chartered (UK) and European Trade Mark Attorney, Marks & Clerk

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