Intellectual property (IP) may not immediately spring to mind when biting into a delectable piece of chocolate, but as with almost any type of product, IP can be an extremely important marketing strategy.
The thought of the cocoa bean extinction on the horizon due to climate change gives me the shivers. Without cocoa beans, there is no chocolate! Don’t panic; science and innovation is working towards future-proofing the chocolate industry.
You may be surprised to know that there are a host of patents to all manner of chocolate-related inventions. Examples include US 2,224,637 to chocolate-flavoured chewing gum back in 1939, and the multi-tiered chocolate fountain, which was patented as recently as 2004.
A key point is that for your patent to be successful, your invention needs to be useful, new and not obvious. So, how does this sound – chocolate that melts in your mouth but not in your hands. Well you are in luck because the likes of Nestle, Hershey Co and Cadbury are all currently hard at work.
It goes without saying that global warming is affecting every part of our lives. Did you know that cocoa beans obtained from identical varieties of cocoa plants can have different characteristics, i.e. inferior or lower quality cocoa beans, caused by changes of climate? US 9,833,009 claims a method for improving the quality of cocoa beans by removing contaminants.
Trade marks and chocolate have a long-standing relationship. In Australia, trade marks need to be capable of distinguishing the goods or services to which the mark is applied. However, if they meet those criteria, words, logos, shapes of products, colours, scent and sound may all potentially be registrable.
This has led to trade marks being registered not only for chocolate manufacturer’s logos, but also for the shape of the chocolate itself. In a recent battle in the UK between Toblerone and Poundland, a deal was reached allowing Poundland to sell their ‘Twin Peaks’ bar after a copycat dispute in which Poundland asserted that Toblerone’s shape trade mark had lost its distinctiveness because the shape of the Toblerone product had been changed to have ‘fewer chunks’. That case did not reach the courts, but there are situations where shape is not always considered sufficiently distinctive, with Guylian being denied registration of a trade mark application for the shape of their chocolate seashells as a trade mark in Australia.
To be a registrable design, the appearance of the product must vary from that of any existing products. A design right will afford you protection for the appearance of the product and its packaging. Cadbury’s Easter bunny chocolates are an example of a successfully registered design for the appearance of the product.
As the name suggests, a trade secret is a compilation of information that is kept confidential and preferably protected by a signed confidentiality agreement. While a trade secret is a not a type of registrable IP, it is a common strategy for protecting IP where the owner derives economic value from the information being kept confidential. An example of a well-guarded trade secret is the process for making Hersey’s chocolate. Although the process is still top secret, there are rumours that it involves lipolysis of milk producing butyric acid and stabilising it.
Even with chocolate on your mind, it is clear that your IP may be your most valuable asset and can give you a competitive advantage over your competitors. Having a sound understanding of your IP needs will ensure you make the most of this invaluable tool.
First published in Chemistry in Australia magazine.