Page 61 - Retail World Magazine Jan/Feb 2021 TOB

With ‘Veganuary’ getting 2021 underway, there’s no better time to discuss the plant-based meat revolution. Last year brought a huge rise in consumer demand for vegetarian and vegan options, with the growth of alternative protein sources especially surging. The roots are in the export of traditional meats, but the rapid growth in Australia’s alternative protein sector in recent times is undeniable. Supermarkets, restaurants and cafes are dedicating more resources towards plant-based, meat- free options to accommodate shifting consumer preferences. Most recently, we’ve even seen McDonald’s make its first foray into plant-based meat alternatives, and 2021 should bring the launch of its McPlant line, developed in conjunction with US-based plant-based meat producer Beyond Meat. Whether consumers are dabbling in plant-based preferences or in it for the long haul, it’s clear they’re demanding authenticity, transparency and integrity from the brands they choose to support. It’s also clear that brand protection will be central to the long-term viability of businesses looking to get a piece of the (quite substantial) plant-based pie. While this article is focused on identifying issues specific to the life cycle of plant-based meat products, many of the tips below are, of course, applicable to businesses operating in the wider food and beverage industry. Below are some easily digestible pieces of advice to take away. Clearance searches One aspect that should be considered at the earliest possible stage is whether the trademark you want to use is both available and capable of registration. Once you’ve worked out the desired territories and the goods that you want to claim protection for, clearance searches can be carried out to check whether any similar or identical trademarks have already been registered for the same or similar goods. These searches will also consider whether you need to be aware of any unregistered rights. Relevant but unrelated searches are checking the availability of a domain and business/company names. Availability of a domain and business name doesn’t necessarily mean no risk of infringement though, so it makes sense to do this in conjunction with trademark clearance. The small investment in these searches is a hugely valuable tool in identifying and managing risk before spending time and money promoting a new brand. Keep schtum Depending on the nature of the plant- based food being launched, it’s a good idea to keep the product under wraps until your preferred domain name has been registered, the intended business/ company name is locked in, trademark protection has been applied for in at least one country of interest, and if applicable, patent applications have been filed. Trademark applications By applying for a trademark in one country, businesses can take advantage of a ‘priority’ claim for applications for the same mark in most other jurisdictions that are likely to be relevant within six months – a useful tool that will facilitate the backdating of any trademark rights in the new jurisdiction to the filing date of the initial application. For those that have already been in operation for a few years, it’s a good idea to do an audit of any pre-existing trademark protection and consider whether new applications need to be filed so that the IP portfolio is up to date and accounts for any brand refresh/new products. Watching services Once IP protection is in place, it’s crucial to monitor on an ongoing basis and make sure there’s no infringement or inadvertent failures to renew that protection. Your IP advisors can put “watching services” in place to mitigate the risk of missing renewal deadlines or third parties taking advantage of your IP. Exercise caution with health claims, labelling and comparative advertising Obvious comparisons are to be drawn between conventional meats and plant- based alternatives, but it’s important to only make claims that are 100 per cent accurate and able to be substantiated. If considering a comparative campaign, make sure the products being compared are reasonably similar, and that the comparison will be valid for the life of any promotion. Similarly, it’s crucial to exercise quality control measures to ensure that the product being manufactured is consistent across the board – something to consider in any agreements with third parties if you decide to license or franchise a brand down the line. In Australia this area is governed by the Australian Consumer Law ), which is part of the Competition and Consumer Act 2010. More guidance on how to avoid making false, misleading or deceptive claims can be found on the ACCC’s website. Position your brand for success Whether you’re involved with a new or established enterprise, there’s a multitude of reasons to make brand protection central to the marketing strategy. The related but more developed plant-based milk sector has given companies a blueprint for how to leverage IP rights to set themselves up for success, not to mention add value to their business and make it highly attractive to investors. We promise you won’t regret the initial investment. LEGAL About Lynne Lewis Lynne is a partner in Bird & Bird’s Intellectual Property Group in Sydney. Intellectual property and related consumer and regulatory law is her area of specialty. She works on all aspects of the creation, commercialisation, management, protection and enforcement of IP rights, as well as on retail and consumer law, dealing with the application of the Australian Consumer Law and the complexities of franchise law. About Kellie O’Flynn Kellie is a Senior Associate in Bird & Bird’s Intellectual Property Group in Sydney. She helps clients to protect and enforce their IP rights by advising on trademarks, copyright, designs and overall brand management. About Bird & Bird Bird & Bird is one of the world’s leading international law firms advising industries where technology, regulation and intellectual property are driving change. With its strong Australian presence, clients enjoy global reach across various practice areas. JAN/FEB, 2021 RETAIL WORLD 59