This year, the European Patent Office (EPO) granted three new
patents to Carlsberg (EP2384110, EP2373154 and EP2575433) relating,
broadly, to the harvest of kernels from barley plants, the process
for brewing and the drinks produced by these methods. European
patent law prohibits patents on plant varieties and breeding;
however, notwithstanding these prohibitions, the patents have been
granted by the EPO.
The European Commission has stated that plants and animals
resulting from essentially biological breeding should not be
patented. Accordingly, there have been calls for Carlsberg to
voluntarily relinquish the three patents on the basis that there
should be no patents on beer and brewing barley since the
cultivation of plants and beer brewing stems from a tradition that
is centuries old. There have also been calls for European
governments to bring the EPO under political control.
It remains to be seen whether the EPO will respond to statements
made by the European Commission and the European Parliament and
whether Carlsberg will respond to calls to voluntarily relinquish
For clients in the food and beverage industry, the Carlsberg
saga is noteworthy. The controversy surrounding the Carlsberg
patents demonstrates that it can be extremely difficult, costly and
time-consuming to obtain such patents. It is also worth consider
the other forms of intellectual property that are particularly
important to clients in the food and beverage industry,
Copyright does not protect concepts and, accordingly, would not
protect a culinary idea (for example). However, copyright protects,
amongst other things, artistic and literary works and may therefore
be applicable to materials such as blog posts and other online
content, printed materials such as cookbooks or nutritional guides,
and artwork on packaging and promotional materials. Copyright may,
depending on all the circumstances, also protect culinary artistic
works, such as cake designs.
Trade marks are rights that grant the owner a monopoly right to
use a certain word, phrase, logo, shape or colour in respect of the
goods and/or services for which the trade marks have been
registered. Accordingly, trade marks may be used to protect, for
example, the name of a food product, a logo relating to particular
restaurant or chef, or the shape of a bottle or other
Registered and unregistered design rights are available both at
UK and an EU level and, broadly, protect the shape of an object
(or, to put it another way, the 'look and feel' of an
object). However, design rights do not protect the functionality of
the object. Accordingly, design rights may also be used to protect,
for example, the shape of a bottle or other packaging.
Confidential information is not an 'intellectual property
right' in the traditional sense. There is no statutory basis
for confidential information as there is for patent rights,
copyright, trade mark rights and design rights. The basis of
protection is the common law and/or contract law and the
information will be protected as long as the information remains
secret and the person with whom the information is shared knows
that it is to remain secret. Accordingly, confidential information
is often the only or main form of protection for sensitive
materials or information (such as trade secrets, know how, methods,
processes and secret recipes), which cannot be protected by the
substantive intellectual property rights discussed above. For
example, Coca Cola's 'secret recipe' is not protected
by a patent or by copyright, but it remains protected as one of the
worlds' best kept trade secrets.
Briffa advises a broad range of clients in the food and
beverage industry on all aspects of intellectual property law and
practice, including non-contentious matters such as filing for
trade mark and design protection and contentious matters such as
advising on infringement of intellectual property rights. If you
would like to meet with one of our specialist intellectual property
lawyers for a free preliminary consultation and assessment, please
do not hesitate to get in touch.
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.
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1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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