A Food Lawyer's Checklist For Successfully Branding Your Food Business

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Erin Bennett is lawyer who represents food clients on various intellectual-property, labeling and packaging, advertising, and Internet matters.  In her free time, she raises, eats, and cooks good food.  Reach her at BedrockSF.

Lawyers can help food start-ups with a range of issues, from forming a legal entity and drafting vendor and distribution agreements to counseling clients on employment issues. While these examples focus on concerns more closely tied to the company’s operations, lawyers can also assist with several key aspects of the process of developing and rolling out a food product or service. 

Creating an overall brand, product names and packaging, and advertising inevitably take place, and working with a lawyer on these issues often increases each end-product’s value as well as significantly minimizes risk from branding efforts. Consider the following areas in which I commonly advise food clients:

Choosing the name of your product or service.

  1. Should you apply for a federal trademark registration, or are you better off merely using the name without registering it or applying for a state trademark registration?
  2. Does it make sense to apply for one name or your top three names?
  3. Should you apply to register the words in your product name, the logo that accompanies it, or both; and is there any benefit to applying for your logo in the colors in which it is used?
  4. If you get a federal registration, how readily will you be able to stop others from using your name?
  5. What are the chances that third parties will take issue with your name, possibly resulting in a cease-and-desist letter?

Creating your product packaging.

  1. Do you qualify for the small-producer exemption
  2. Are the name and flavor of your product correctly stated?
  3. Does your label inadvertently make health claims?
  4. Does your label comply with regulations related to claims about nutrient content?

Promoting your product or service.

  1. Are your advertisements compliant with FDA and FTC regulations?
  2. Are you using terms such as “natural,” “organic,” “artisanal,” and “local” properly?
  3. If you are sending free product to bloggers, do you have monitoring procedures in place?
  4. Might you be unintentionally using copyrighted material or violating someone’s right of publicity?
  5. Do your promotional emails and social-media efforts meet relevant standards?

Can you do most of this without a lawyer? Absolutely.  But working with a lawyer knowledgeable about food branding issues will help you choose a strong, protectable trademark and be confident in your packaging and advertising efforts.  It will also help to minimize unexpected risks down the road—like a threatening letter about your product’s trademark shortly before it is released or FTC attention based on your efforts to get your product noticed.

 

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