Walking through supermarkets, scrolling through your socials, or switching on the tv – there was no avoiding Veganuary this year. The plant-based lifestyle is becoming increasingly popular for a range of reasons, from health and well-being to animal welfare and sustainability.

Plant-based food producers are no longer the traditional vegan and vegetarian companies. Meat companies are selling plant-based alternatives. Cadbury has just announced the launch of its “Plant Bar” and McDonalds’ “McPlant” is already becoming a mainstay.

What intellectual property issues should you consider when venturing into the plant-based world?

Trade marks

For animal-based producers expanding into the plant-based space, it is important to review existing trade mark protection.

For example, meat related trade marks are covered by Class 29. Plant-based meat substitutes are also in this class, but if the plant-based products will be sold under the same trade mark, a new trade mark application should be filed for the new goods. As always, this should be done as early as possible.

A separate brand for a plant-based product line may be preferable. While the company may not be able to springboard off its reputation in another area of food production, it reduces the risk of confusion between its products. It also provides an independent product line, should the company wish to divest it in future.

For the trade mark itself, it may be tempting to include the word VEGAN or similar. Companies should ensure that the plant-based trade mark is not descriptive of the goods, otherwise there could be registrability issues.

There are a number of vegan certification trademarks that could be used on packaging, subject to obtaining the relevant licence or certification from the owners of these trade marks. The Vegan Society’s trade mark is on over 58,000 products worldwide.

Patents

Given the highly processed nature and synthesis of plant-based foods, they may be patentable if they meet the usual patentability tests. Impossible Food Inc has been a prolific patent applicant over the years.

It is worth considering whether to retain any inventions that may be patentable as trade secrets instead.

Joint ventures

The plant-based revolution is leading to many joint ventures between animal-based producers and vegan companies or other ingredients manufacturers.

Ownership of intellectual property from such collaborations should be agreed at the outset, particularly for jointly created intellectual property.

The plant-based company will have recipes, formulations and production processes to protect. The animal-based company may have its own flavours that it wants to emulate for new products as well as a look, feel and texture of the product. Appropriate intellectual property licences should be agreed, and non-disclosure agreements are essential.

Consideration should be given to post termination use of background intellectual property, if required.

Another issue is whether the product will be co-branded, such as McPlant and Beyond Meat, or if one party’s contribution will be white labelled.

Packaging claims

For plant-based products, packaging and labelling presents new challenges. For instance, in the EU, terms such as “milk” or “yoghurt” cannot be used for plant-based alternatives.

Care should be taken to ensure that the packaging or labelling is not misleading and complies with the relevant legislation.

Conclusion

There are many opportunities as well as challenges in a plant-based world. Proper planning and preparation is key.

Intellectual property issues and ownership should be considered and secured as early as possible in the process. This will maximise the chances of success as well as enforceability of intellectual property rights.

For more information, contact a member of our Intellectual Property Team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.