An effective intellectual property protection strategy is vital for almost every business, but is perhaps even more important for businesses such as breweries, wineries and distilleries where much of their product differentiation comes in the way of their unique recipes and creative and eye-catching logos marks.
Before one can appreciate why such a strategy is so important, we should first quickly explore the several types of the most applicable intellectual property and identify what dangers might await an unknowing business with respect to that type of intellectual property.
Trademark
A trademark, quite simply, is a word, logo, sound, color or other identifier of product origin used in connection with the sale of a good or service. Even if not federally registered, almost every business has a mark or marks that are protectable. Trademarks serve several important functions, chiefly to prevent consumer confusion and to protect and incentivize the efforts of a business in working to establish goodwill and recognition in its marks. Further, businesses can assert the rights they establish in and to certain marks, either offensively, to keep others with similar marks out of the marketplace, or defensively, to protect themselves from infringement claims from other mark holders.
One of the biggest mistakes most often made by businesses is creating and employing a branding campaign in the marketplace before performing the necessary due diligence to ensure that such campaign is in no way infringing on another's rights. Depending on the egregiousness and scale of the infringement, this mistake could be severe enough to total a business. And although many times a claim of infringement can be resolved by an agreement between the parties to co-exist under certain strict terms and conditions, without the review of such an agreement by an attorney knowledgeable in the Trademark field, a business can surrender rights in its marks that it may not necessarily have to give up. Often, this mistake leaves the business starting the branding process over from scratch; that is, assuming it has the resources to continue.
To avoid this problem, businesses should have a trademark clearance search performed by a knowledgeable attorney prior to using any marks in commerce. It is often highly recommended, depending on the size of the business and where the business sells its goods, to also file for a federal trademark registration for each of its marks and potentially its trade dress too. This will likely help the business avoid such a disaster and get off on the right track as it begins to create mass appeal and brand awareness amongst consumers.
Trade Secret
A trade secret is a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known in the owner's industry, is maintained as a secret by the owner and provides the owner with a competitive advantage in the marketplace.
Because there is no formal registration process to protect trade secrets, it is absolutely vital to keep the information secret. Such secret, proprietary information should only be shared on a need-to-know basis with certain key personnel within the business and should be further protected by using non-disclosure/confidentiality agreements and well-drafted employment agreement. If such information is disclosed to the wrong individual, it could be lost forever.
Trade secret protection can be a very useful tool to protect information such as recipes, brewing processes and methods, crop development strategies and even marketing strategies.
A knowledgeable attorney can work with a business to identify the information that qualifies as trade secret-protectable and can create a plan to effectively protect such valuable information, which would include preparing well-written policies, confidentiality agreements and employment agreements.
Copyright
Copyrightable works exist everywhere. Copyrightable works typically are works that are sufficiently creative, literary, artistic, musical or audio/visual works that are protected the moment they are fixed in a tangible medium of expression—i.e., pen to paper, scene recorded on film or document saved on a computer disc.
Alcoholic beverage businesses, like breweries, wineries and distilleries, regularly create and possess numerous copyrightable works, from detailed product explanations on bottle labeling, to website content and marketing materials, to, possibly, their logos (potentially also protectable as trademarks) if such logos consist of sufficiently complex designs.
Although rights in copyrightable works are acquired the moment the works are created and "fixed," a business is not able to enforce its rights in and to such works until it receives a federal registration for its works. Additionally, because these works are not always easily identified, but often are quite valuable, it is highly recommended that a business works with an attorney to help identify its most valuable copyrightable works and discuss how they might best be protected.
Intellectual Property Protection Strategy
As reviewed above, often times a business's most valuable asset, aside from its actual product, is its intellectual property. For this reason, it is crucial for businesses with valuable intellectual property to effectively protect such IP through the use of an intellectual property protection strategy. An effective strategy will not only employ some of the protection methods suggested above, but will look, in a big picture way, at all of a business's IP assets and work to create a comprehensive plan with all of the business's IP issues and needs in mind.
Working with an attorney to identify all of the various works acquired, created, used and owned by it and then creating an intellectual property protection plan to not only ensure that such valuable assets are properly protected but to also structure a plan to potentially enable the business to monetize these assets through, for example, IP licensing, can often be the difference between disaster and great success. An effective intellectual property plan will help establish a solid foundation for not only an emerging business, but can sometimes be even more crucial for an already-established business.
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.
