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Protecting your food and drinks brand: Trade mark specifications and descriptions

food and drink trademarks

A trade mark is the embodiment of a business’ brand. Having a trade mark can make protecting your brand, and preventing consumer confusion more simple, cost-efficient and timely.

Written by
Billy Shaw

Trade marks are defined by the goods and services specification for which the mark is registered. Drafting the specification is perhaps the most important part of the trade mark application process. If your specification is drafted too narrowly, then you risk not have adequate protection over your brand in relation to linked or ancillary goods and services. You also risk losing the ability to branch out into similar goods and services.

On the other hand, if your specification is drafted too broadly, you run the risk of your mark being challenged for non-use or bad faith. This brief note intends to outline just a handful of points you might wish to consider when drafting your specifications (including when using the pre-approved phrases).

Think ahead when considering your food & drink trade mark

Once registered, your trade mark is set to be in place for 10 years before it is up for renewal. It is possible for your business model, products and services to change during this period. When drafting your specification, you should think forward to any goods and services that you have a reasonable intention of offering in the near future.

For example, you may file an application to protect milk and milk products (class 29) but have an intention to branch out into coffee-based milk products (class 30). In such a case, filing an application to cover both classes initially will save time and money.

However, you should note that a trade mark can be revoked if it is not used for five years. Therefore, you should make sure that your intention to branch out into other goods and services is realistic and reasonably imminent.

Don’t over-egg it!

When drafting your specification, you may be tempted to draft broad so as to cover all goods and services within the market, even when there is no real intention to use the mark for the provision of such goods or services now or in the near future. Such tactics can be subject to invalidation challenge on various grounds, including non-use. If such challenge is successful, the invalidation may apply to the entire trade mark, including where it applies to genuine goods and services.

Such invalidation proceedings or oppositions are likely to be costly and time-consuming to defend.

Be specific when describing your food and drink trade mark specification

Confusingly broad phrasing can also be subject to challenge and opposition. For example, simply adopting the word “food” as your specification is unlikely to be accepted at face value. This is because such description may carry an implication that you have a genuine intention to use the mark across the full spectrum of types and sub-categories of food, which is unlikely to be the case. Adopting a more precise approach can minimise such risk arising.

Again, such opposition or challenge is likely to cost you time and money.

If in doubt, give me a shout!

This note should not be a substitute for clear professional advice. If you would like to discuss your brand in more detail, and how we can assist, then please do not hesitate to contact me on 0115 910 6231 or b.shaw@rotheras.co.uk. Click here to visit our Food & Drink Commercial services page to find out how we can help your business.

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