How Can I Trade Mark a Food Product?

Emily Young

• 14 February 2023
• 17 February 2023
• 5 min read

If you have created and intend to sell a food product, you are probably looking for the best ways to protect it from other imitations.

This article will take you through whether you can register a trade mark for your food product and other potential ways of protecting your food product from being misused by competitors. 

Can I Register a Trade Mark for a Food Product?

While a trade mark is one way to protect your brand, you will not be able to register a trade mark for your food product. Instead, you will be protecting elements of your food branding, which will help you to distinguish your brand from your competitors. This is just as important as protecting your product itself from imitation from a commercial perspective. 

For example, you may register your: 

• logo; 
• product name; 
• business name; or 
• even the packaging of your food product.

Applying for a Trade Mark

There are a few critical steps in the application process for a trade mark. We outline these steps briefly below:

Selecting a Trade Mark

The foremost step to registering a trade mark for your food product is to choose what you will register. For your food brand, this might include the name of your product or its logo. As long as your trade mark meets the legislative requirements for trade mark registration, such as being distinctive, it will be capable of registration. 

Choosing Trade Mark Classes

Once you have selected what aspect of your food product you wish to register as a trade mark, you will need to choose the relevant trade mark classes. Trade mark classes refer to the 45 categories of goods and services under which you can register your trade mark. Depending on the nature of your food product, a few classes might be appropriate.

For example, trade mark class 30 covers several food products, including: 

• rice; 
• flour; 
• bread; 
• condiments; and 
• spices.

Alternatively, trade mark class 31 will include anything relating to fresh vegetables. Again, this step will require some research to determine which classes of protection will protect the products you sell or intend to sell in the future.

Conducting a Search

Before applying to register a trade mark for your food product, you should conduct a trade mark search. This will allow you to check if there are identical or similar trademarks to your proposed trade mark. If there is, this may prevent you from registering your trade mark. 

Making an Application

Finally, you will need to apply for your trade mark, which you can do through IP Australia’s website. The application requires you to: 

• enter your trade mark;
• provide your ownership details; 
• choose the relevant classes and goods and services; and 
• pay the applicable fees. 

Other Types of Intellectual Property Protection

In addition to trademarks, a few other types of intellectual property protection might protect your food product. We outline these in further detail below. 

Patents

A patent is a registerable, legally enforceable right that protects your device, process, or invention from competitors. For example, this might be an appliance or device.

Patent protection provides you with exclusive rights for your invention. For example, you can prevent others from using or manufacturing your invention without your consent and require others to obtain a license to have your invention manufactured.

Your invention must be new and innovative to be eligible for a patent. While it might sound like a patent is a suitable option for your food product, it is quite challenging to meet the high threshold of originality. Your product needs to be entirely new, or the way you make it particularly innovative. Unfortunately, many food products may not meet this requirement for a patent, with IP Australia refusing applications for food products that are just mixtures of known ingredients.

Copyright

Copyright is a type of IP that gives you the exclusive right to distribute original works. Often, this applies to music, artworks or literature. 

Notably, copyright may also extend to unique recipes.

However, copyright generally does not extend to recipes if they are for a well-known and broadly reproduced substance. For instance, this might include basic bread, pasta or pancake recipes. Accordingly, there are certain limits to what copyright protects and extends to  

On the upside, copyright is an automatic and free form of IP, meaning you do not need to register it once expressed in a material form.

Key Takeaways 

If you have created a product, you likely want to protect it as best as you can. A trade mark is one way to protect your brand. However, when it comes to registering a trade mark for your food product, it is important to note that:

• you cannot register your product or idea itself;
• you can register a trade mark for the branding elements of your product; and
• other types of IP protection available might include patents and copyright protection.

If you need help registering a trade mark for the branding of your food product, our experienced trade mark lawyers can help. Get in touch with them on 1300 657 423 or by filling out the form on this page.

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