By Rachapat Sumjinda
Food entrepreneurs contribute to the diversity of food products in the market. By exploring the critical role of Intellectual Property (IP) rights in safeguarding and promoting innovation within the food industry, from the inception of culinary ideas to their presentation at the dinner table, various forms of IP protections are available to entrepreneurs in the food sector.
This article will examine and elucidate the key types of IP rights, such as Trademarks, Patent Rights, Design Protection, Copyright, Trade Dress, and Trade Secrets, which are instrumental in safeguarding and enhancing the food industry.
Trademark Protection in the Food Industry
A trademark serves as the cornerstone of brand establishment, enabling the public and consumers to recognize and differentiate a brand’s products and services from those of competitors. Consider, for instance, the ability of consumers to distinguish between Coca-Cola and Pepsi or to discern the difference between Coldstone’s ice-cream and Baskin-Robbins. These are commonly understood aspects of how trademarks function.
From an entrepreneur’s perspective, a trademark offers more than just brand development; it functions as a protective shield, safeguarding the brand against potential infringements by third parties. This protection prevents the unauthorized use of the brand’s reputation to promote and sell products. Furthermore, it empowers the trademark owner to initiate legal action against infringers, seeking appropriate remedies for any violations.
Case Study: “Pang-Cha”
In 2023, there is a widespread debate among Thai netizens regarding a trademark issue. It all began with a Facebook post from the well-known traditional-modern dessert café named “Pang-Cha,” which specializes in selling Thai tea and bread as its main products. The post announced that they had registered “all” the available intellectual property rights.
Subsequently, a user left a comment stating that they had received a notice from “Pang-Cha,” informing them that they were not entitled to use the Thai transliterated words “Pang” (a slang term for bread) and “Cha” (the Thai word for tea). According to “Pang-Cha”, they had registered these terms as their intellectual property rights. Otherwise, “Pang-Cha” threatened to initiate a lawsuit, seeking 102 million baht (approximately USD 2,760,000) in trademark infringement remedies.
While the entire “Pang Cha” mark is registrable, the Thai Trademark Office has instructed the Applicant to disclaim the exclusive right to use the terms “Pang” and “Cha”. This disclaimer is due to their lack of distinctiveness and descriptiveness in relation to the goods and services offered by the café. This means that the Applicant is not the sole entity authorized to use these terms, and conversely, the Applicant cannot prevent others from using them.
The aftermath of this dispute has prompted a considerable number of café and restaurant proprietors in Thailand to reflect upon their own IP assets. Consequently, the broader community has grown increasingly aware of the importance of intellectual property rights.
Patent Rights in Culinary Creations
By having novelty and inventiveness in place, patent rights protect unique cooking methods and utensils including dishes and recipes.
One example goes to the chemical formula which is related to the theory of taste in Japan. In 1908, at Tokyo Imperial University, a Japanese professor, Kikunae Ikeda discovered the unique flavor that came from seaweed and dried fish (bonito) flakes used in the soup. He discovered that this compound created a savory taste and he named it “umami”, as the fifth basic taste further than sweet, sour, salty, and bitter. The flavor is enhanced to “Monosodium Glutamate” or MSG, which is glutamate extracted from seaweed and converted into a stable, crystalline form. Indeed, this chemical formula that causes the umami flavor is patented. Then, Ikeda and his businessman partner, Saburosuke Suzuki, commercialized this patent into a food seasoning product, under the name “Ajinomoto” (味の素), which translates to “essence of taste.” We can simply find this product in any Asian food market.
In Thailand, there is a funny quote about MSG,
“More MSG, more delicious. Less MSG, less delicious”.
But it does not mean that every good restaurant uses more MSG.
Packaging: An Extension of A Brand’s Identity
Consumers may buy a product based on how well they relate to the brand represented through its packaging. High-quality, well-designed packaging can create the perception that the product inside is also of high quality. Consumers may associate premium or luxurious packaging with a premium product. Packaging that is user-friendly, easy to open, and resealable is often preferred by consumers. It enhances the overall user experience and convenience.
For example, Frito-Lay North America Inc. registered their container tray for their potato chips in Thailand as we see in their product “Lay’s STAX” – see the images below.
Copyrightable Aspects in Food Industry
We may familiarize ourselves with copyright as the IP right for writing articles, artworks, artist performances, and computer programs. However, in the food industry, copyright also protects the expression of the restaurant, such as advertisements, pictures and arrangement of menu books or brochures, the design or style of package, recipes, cookbooks and more. This is a type of IP right that is not required to be registered to obtain protection. Copyright protection will start from the day the copyrighted work is published to the public. The duration of copyright protection in Thailand typically lasts for the life of the author plus an additional 50 years after the author’s demise. For the juristic person, the protection duration shall be 25 years after the copyrighted work is published.
In September 2023, KASS received inquiries about copyright infringement that took place in a foreign country. A Thai-fusion dessert restaurant’s owner contacted us after discovering her menu pictures were used in a Thai restaurant in Australia. In response to the inquiry, we preliminary suggested our client contact the Australian restaurant directly and send a cease-and-desist letter. This letter notified the Australian restaurant owner that they have allegedly infringed a legal right of our client and must stop using the pictures within two weeks. Luckily, the restaurant owner complied and took down the pictures from their menu. This matter showcases that not every infringement case ends up in a lawsuit.
Trade Secret as a Competitive IP Strategy
In the food industry, there exists a notable overlap between patent rights and trade secrets, particularly when it comes to the protection of novel culinary innovations and food processing techniques. While patents provide a formal, publicly disclosed, and time-limited monopoly on an invention, some food companies choose to rely on trade secrets to protect certain aspects of their creations. This strategic decision is often influenced by the desire to maintain secrecy and avoid disclosing the full details of a recipe or manufacturing process. For instance, a food company might patent a unique food product but keep the precise recipe as a trade secret to maintain a competitive edge, as patents require public disclosure. This dual approach allows food companies to enjoy the benefits of both exclusive rights and ongoing secrecy, providing a versatile strategy for safeguarding their intellectual property in the ever-evolving and highly competitive food industry.
It is important to note that the protection of trade secrets is typically governed by intellectual property laws and contractual agreements rather than being publicly disclosed as a matter of national policy. The Trade Secrets Act in Thailand provides legal protection for trade secrets and confidential business information. Companies in Thailand, like elsewhere, invest in measures like non-disclosure agreements (NDAs), employee confidentiality agreements, and physical security to safeguard their trade secrets.
Common examples of trade secrets in Thailand are:
Tom Yum Soup Base Recipe: Many Thai restaurants and food manufacturers consider their Tom Yum soup base recipe a closely guarded trade secret. The unique combination of herbs, spices, and other ingredients that give the soup its distinctive flavor is often protected as a trade secret. Restaurants and manufacturers take various measures to maintain the secrecy of this recipe, including restricting access to a select few employees, using code names for ingredients, and storing the recipe in secure locations.
Fish Sauce Production Method: Fish sauce is a fundamental ingredient in Thai cuisine, and the production method varies from one manufacturer to another. Some Thai companies have developed proprietary fermentation and aging processes that result in distinct flavors and aromas. These methods are typically protected as trade secrets, with strict protocols and limited access to the details of the production process. Unauthorized disclosure or use of these methods by employees or competitors can lead to legal action for trade secret misappropriation.
These examples illustrate how trade secret protection is applied to traditional Thai food recipes and production processes, ensuring that the unique qualities of these products remain confidential and valuable to their respective creators.
Innovative technology not only serves as a source of inspiration for others to create groundbreaking solutions to address market demands, but it also benefits society at large. Today, the food industry has evolved to provide a continuous supply of meals around the clock to meet the needs of our ever-busy lives. From trademark and patent to copyright and trade secret, Intellectual Property protection plays a vital role in driving progress in the food industry, thereby contributing to the betterment of society.
If you have any questions or would like to learn more about IP protection in Thailand, drop us a line at firstname.lastname@example.org!
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