All in the mix – IP for protecting blends
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Coffee and tea blends may be proprietary but can they also be classified as intellectual properties (IPs)? In an exclusive article for T&CTJ, patent attorney, Andrew Tindall, explores ways for coffee and tea brands to protect their exclusive blends through IP strategies.
For as long as people have been drinking coffee and tea, they have been developing new blends. Even in an age of renewed interest in single origins and specialty products, there will always be new brews balancing the strengths and weaknesses of different varieties. Indeed, for many aspiring tea and coffee brands, blends offer an accessible entrance into the market to produce distinctive and popular signature products without having to develop growing and processing capacity.
However, this low barrier to entry also applies to your competitors, who can reverse-engineer your blend and sell a knock-off product. Far worse, they can sidestep the lengthy process of developing the blend, and the considerable pain of tasting sub-par blends, by simply imitating a proven product. Whilst imitation may be the sincerest form of flattery, blend-masters need to think about protecting their precious blends from imitators. One way to stop the “copycats” in their tracks is to build a robust IP (intellectual property) portfolio around the core of the business.
The strongest form of IP protection available is afforded by patents. After filing, these provide a monopoly that prevents competitors offering the same and similar products. However, these are not always well-suited for protecting tea and coffee blends. Firstly, the barriers to patentability require that the invention is both new and non-obvious in a surprising or unexpected way. For many blends of coffee or tea, combining known origins or varieties is unlikely to meet this standard. Additionally, applying for a patent involves disclosing how the invention can be put into practice, effectively meaning that to the extent the patent isn’t enforceable, the recipe is now in the public domain. Finally, obtaining patent protection is a slow and costly process, easily running into the tens of thousands of dollars/euros/pounds and taking three to five years. This is not always suited to fast-moving development schedules for consumer goods. Whilst there may be some use-cases, for instance, concerning new processing steps, artificial flavourings, or ways of determining bean qualities, these rights will generally form a small part of the IP portfolio for a blender.
Although patent protection is challenging, there are other avenues available to protect the recipe for a proprietary blend. Chief amongst them, trade secrets are practical, and legally enforceable, rights that can be very powerful for protecting recipes. After all, the archetypical trade secrets are the Coca Cola “secret formula,” and “Colonel Sanders’ 11 Herbs and Spices.”
In the world of coffee and tea, there is a clear parallel, where the sources and amounts of various origins produce the signature flavour yet are difficult (if not impossible) to reverse-engineer from the product on the shelf. To benefit from trade secret protection, it is necessary to take steps to identify the underlying information and actively keep it secret. However, if this can be achieved, a monopoly over your blend can be maintained indefinitely.
The “secret recipe” strategy
In the world of food and drink, trade secrets can also be an effective marketing tool independent of the qualities they impart on the products. A large part of the value of the “secret recipe” lies in the mystique – the idea that there is something special, heritage, or unique about the blend – and canny blenders will trade on this part of their brand story.
Of course, when thinking about tea and coffee brands, the first form of IP that comes to mind is trademark protection. Relatively cheap, robust to enforce, and potentially indefinite in scope, no IP portfolio around a blend can afford to go without at least one, if not several, trademarks around the name, logos, and trade dress of the product.
There are some drawbacks to this approach, chiefly that the recipe itself cannot be trademarked. Whereas patents and trade secrets might prevent third parties replicating your blend, trademarks serve to identify those who do as cheap imitators.
However, clever use of trademark protection can provide even broader protection around the reputation and goodwill in the brand, marking you out as the originator in a sea of cheap imitators. For example, Earl Grey is such a powerful and evocative blend that customers would know to expect something similar from a blend called “Earl’s Delight” or “Imperial Grey.” In contrast, they probably would not expect to taste bergamot and citrus in “Campfire Noir” or “Jaipur Breakfast.” Strong and evocative marks can cast a broad shadow in a similar way, invoking your branding in the minds of customers even when they buy products from competitors. Trademark holders can also assert their rights against confusingly similar marks, providing a legal remedy against attempts to ride the coattails of a brand.
Developing a new blend of coffee or tea that tastes great involves balancing the strengths of different estates and origins to produce something greater than the sum of its parts. Much like the products themselves, it is a blend of hard and soft IP rights, providing overlapping layers of protection around aspects of the product, packaging, and branding, which will help secure and maintain a place on the shelves. Taking a holistic approach, integrating IP capture and strategy into the brand and product development, is the secret recipe for success.
- Andrew Tindall is a patent attorney at Potter Clarkson, a London-based IP firm. His expertise lies in helping innovators develop and execute their patent strategy across a broad range of biotechnologies. Tindall has a special interest in the technologies shaping the futures of food and agricultural sciences, combining his background in plant sciences with a passion for smallholding, but works across technical areas including antibody therapeutics, digital health, and precision oncology.
