New Zealand: Sexy food products get noticed, so use IP protection

Last Updated: 21 September 2013
Article by Peter Brown

Did you know you can get Intellectual Property protection for how your food or beverage product actually looks – a key element in its commercial success.

If your product is on the supermarket shelf, or about to be, it's not rocket science to realise that its success relies on customers choosing your product over the competitions. Brand recognition and trust are of the utmost importance.

Most food and beverage companies appreciate the significance of trade mark registrations to protect their cherished brand, but that's not all there is to it.

Often, a product's visual appearance is what first triggers with the customer, not the actual branding or name. This is especially true where language barriers exist, such as in Asian markets.

Food and beverage companies often don't realise that their product's unique look can be protected using design registrations - so we're here to change that.

A design registration can be for a new 3-D shape, such as a new bottle design, or for a new 2-D pattern, such as artwork on a box. When you think of products, what is it that makes them visually stand out to you?

Design protection for a product or packaging should always be considered, particularly if you want:

  • to prevent or deter your competitors from using similar design elements
  • to have some registered IP1 rights when there is no ability or need for patenting
  • to launch a product quickly with IP protection in place
  • to have cost effective overseas IP protection in your key markets
  • to have intangible assets (like trade mark rights) that can be sold or licensed, and/or
  • to promote your company as being innovative.

The important thing to remember is that, in most countries, validity2 of a design registration relies on it being novel3, so you can't launch a product and hope it gets design registration later.


1Refers to the ownership of an intangible thing - the innovative idea behind a new technology, product, process, design or plant variety, and other intangibles such as trade secrets, goodwill and reputation, and trade marks. Although intangible, the law recognises intellectual property as a form of property which can be sold, licensed, damaged or trespassed upon. Intellectual property encompasses patents, designs, trade marks and copyright.

2A patent is valid if it is legally enforceable. This means that it must fulfil the criteria of patentability and not be able to be invalidated by a patent revocation proceeding. It is possible that a granted patent may not be valid, or at least its validity could be questionable. Ultimately, only the Courts can judge the validity of a granted patent.

3One of the requirements for patentability and the first part of the test for inventive step. In patent law "novel" simply means new or not previously known. New Zealand currently has a "local novelty" requirement for patentability. This means that the subject invention will not be novel (and therefore will not be patentable) if it was known or used in New Zealand before the date on which the application for a patent was filed. There is a proposal to amend our legislation in late 2010 to move to an "absolute novelty" standard. This means that the subject matter must not be known or used anywhere in the world before the date of application in New Zealand. If the subject matter is known or used before the date of application, this is known as "anticipation".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

James & Wells Intellectual Property, three time winner of the New Zealand Intellectual Property Laws Award and first IP firm in the world to achieve CEMARS® certification.

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