October 9, 2020
Proper IP Management Gives Pet Food Manufacturers a Competitive Edge
In a crowded market like the pet food market, it is important for companies to distinguish themselves from the competition. The following topics provide a broad overview of crucial IP areas where pet food manufacturers will want to focus.
There are only so many ways a company can say “pet food.” To differentiate all of the different pet foods between all of the different brands, consumers look to company names, logos, and packaging to quickly identify sources of consistent quality and value. These branding elements and source identifiers are protected with trademarks.
Trademark law protects the names and packaging designs of pet food products and prevents competitors from using confusingly similar names or packages to dupe customers into buying their products. With so much competition in the pet food space, if a competitor with a confusingly similar product to yours was found to use sub-par ingredients, for example, customers could view your product as “guilty by association” and opt to buy other products instead, harming your revenue streams. By trademarking your products, you remove a great deal of the risk of this confusion.
The flipside to the conversation, however, is that choosing a good trademark and packaging design can require both market research and legal analysis to ensure other businesses do not already own similar trademark rights. Be sure to conduct thorough searches and do not get your heart set on a particular name or design until you know they have cleared the proper searches.
Related to trademarks, pay close attention to the advertising claims on your packaging. Claims such as “Made in USA” and “All Natural” may not be as heavily monitored in the pet food industry as they are in other industries, but they are still subject to false advertising laws and could have major repercussions to your revenue if consumers find out that they are not entirely true.
Similarly, be respectful of endorsements from groups like the Veterinary Oral Health Council and only use their trademarks in accordance with the rights they grant you.
For pet food manufacturers, patents prevent the copying of technology like patented pet food formulas and manufacturing techniques. Formulas vary widely in the pet food space: dogs and cats in all stages of the lifecycle; indoor or outdoor; weight control; hairball control; stinky breath control; grain free or raw diets; and protein sources from chicken to fish to kangaroo. If your company comes out with an innovative new formula, the best way to ensure exclusivity it by filing a utility patent application. You should file a utility patent application before the new product is disclosed to the public or hits the market.
If you cannot compete on exclusive formulations, you can still win in the market by controlling other costs — especially manufacturing costs. Any innovative technology you develop to produce pet food or other products should be considered for patenting. This includes processing equipment, bagging or labeling equipment, or even storing and distribution technologies.
For other products, such as special food bowls or storage containers sold to consumers, consider filing a design patent to protect the non-functional elements of the design. Design patents can provide a cost- and time-efficient option for protecting products like these.
Monitoring and Enforcement
Businesses can consider using paid, online services to watch over their granted patents and trademarks for infringing activity. IP firms can also provide these monitoring services as a value-added service.
Notify in-house and outside counsel as soon as infringements are suspected or discovered. The longer you wait, the more revenue you will lose. It could also be harder to win your case if a pattern of acquiescence emerges.
Global IP Management
A common step in business growth is moving into new international markets. It is important to seek protection and understand the IP laws in the countries where you want to do business before launching product lines there.
It may seem obvious, but be sure to check that your company and product names do not translate into anything that could negatively affect your brand, too. If they do, change them.
Trade Secret Management
One of the most important areas for pet food manufactures to protect is their trade secrets. It is likely that every business in this industry will have valuable secrets, such as ingredient combinations or amounts, ingredient suppliers, manufacturing procedures, new products under development, and even contact information for loyal customers. For some of those, patent protection is the best protection. Everything else that gives your business a competitive advantage so long as it remains a secret can and should be treated as a trade secret. An IP firm can help you decide whether to pursue patent protection on a particular secret or maintain it as a trade secret.
The law protects trade secrets from the use of improper means to acquire them (“misappropriation”), provided that businesses take reasonable steps to protect their information. Because of this requirement, disclosing any such information without a confidentiality agreement can result in the loss of the trade secret. When you disclose your business’ secret information to a “trusted” supplier or customer without a confidentiality agreement, you open the door for misappropriation to occur under the premise that your company does not take reasonable steps to protect its secrets and, therefore, they are not entitled to protection.
It is also worth including a statement about confidential information in your employee agreements that compels employees to maintain secrecy. Failure to do so can result in loss of the trade secret protection if the employee reveals the secret.
Lastly, confidentiality agreements do not stop third parties from disclosing your information, they merely give your company the right to sue. Do not disclose information you don’t need to, and do not disclose information to someone you don’t trust.