Trademark and patent laws can help the inventor of a signature drink control its fate, use the drink to promote their business, or perhaps even allow the inventor to earn some profit from his or her creation.
At first blush, the process to get your signature drink protected by federal trademark or patent law can appear too daunting to be worth pursuing. With the help of a capable attorney, gaining ownership of a signature drink can become relatively easy.
To determine if legal help should be sought to trademark and/or patent a signature drink, below are some basic requirements for each process that can provide legal protection. If your drink seems like it could fulfill the requirements for either protection, seek legal help to gain that protection.
Since trademarks and patents are two entirely different processes, with two entirely different types of protection, they will be discussed separately:
Trademarking is simply a matter of protecting a drink’s name, logo, slogans, or other ways of identifying the product. A trademark will not protect against other people making a drink using the same ingredients or process, but it can stop them from using one’s branding in a way that would confuse a reasonable customer. A trademark is the most useful tool for protecting hard earned branding.
The most important thing to receiving an enforceable trademark is to have a unique identifier. If the name is common or only a descriptor, then it won’t receive a trademark. That is why a white Russian or a Jack and Coke can’t be trademarked. Instead, a name, logo, or slogan must be immediately identifiable with a specific entity.
If there is a name, logo, slogan, or other identifying marks which a person would like control over, then the first step is to get a federal trademark (note that a separate trademark is needed in each country in which trademark protection is wanted).
After receiving the trademark, the trademark holder is the only person who can enforce it. The government does not seek out trademark violation to prevent violations. If a trademark holder notices an apparent violation of his or her trademark, he or she should work with an attorney to stop the violation.
If a drink creator is looking to protect the drink recipe, rather than just the name, then a patent is the protection needed. There are 4 requirements to receive a patent. Like trademark holders, only a patent holder can enforce his or her patent.
First is that it is a patentable subject material. If your drink requires a specific recipe, then it is the kind of material which can be patented, provided the remaining three requirements are met.
Second, the drink recipe must be “useful.” This is a simple requirement, where the drink will practically only be disqualified if an ‘invention’ doesn’t work at all. Essentially, if the drink is consumable, it will meet the second requirement for a trademark.
Third, the drink recipe must be “novel.” All this means is that the recipe is new. A drink doesn’t need to be completely different from anything that has come before it. It just needs to be distinguishable in some manner from all of the prior inventions. Under federal patent law, one can’t patent the wheel, but can patent innovations made to the wheel.
Last, the drink recipe must be “non-obvious.” This requirement is the toughest to overcome for a drink recipe. A common sense test is used to determine if a recipe would be obvious to try. This requirement prevents something as simple as a combining a few beverages from being patented. The more complex or unusual your recipe, the more likely you can fulfill this requirement.
If there is a case to be made for each of these requirements, then an attorney should be consulted to begin the process of protecting your invention with a patent.
While owning both trademark and patent for a drink provides a more complete ownership of a signature drink, one can work without the other to help give a drink owner an edge on the competition.
As an added note, both trademarks and patents can be bought and sold, and many go entirely unused. That means that even if a signature drink isn’t as original as an inventor thought, an attorney can help one in gaining the right to protect the drink anyways.