All over the world, food and spice are vital to human life. Food deliciously sustains life, provides energy, and promotes growth. And more than just adding flavour to life, spices colour and preserve food. A spice could be a bark, fruit, plant, seed, or other plant substance. Bulbs, fruit seeds, grains, rhizomes, and vegetables make up the food we eat. Though spices can serve cosmetic, medical, and religious purposes, some spices make great vegetables too. Nigeria’s food and spice industry presents huge opportunities for wealth.
Taking Competitive Advantage of Nigeria’s Food and Spice Market Nigerians love food.
Nigeria is blessed with food and spices from the various ethnic groups in the country. With over 180 million people and growing fast, demand for food and spice in Nigeria is constantly high. This increasing demand for Nigeria’s food and spice ensures that the food and spice market is forever growing.
Food and spice companies, local and international, are taking more and more competitive advantage of the demand. Food and spice products are being produced, marketed, and distributed in both rural and urban markets. With a growing chain of wholesale distributors and suppliers, some of these food and spice products are exported to other countries, though their contributions to Nigeria’s Gross Domestic Product (GDP) have not been so delicious and spicy.
#MadeinNigeria is spurring local food and spice companies to up their game.
According to Euromonitor’s overview of the packaged food industry in Nigeria for instance, ”[t]he economic recession of 2016, due to falling government revenue from crude oil prices and an associated devaluation of the local currency, have led to a difficult environment within the packaged food environment, despite good growth.” Nigeria’s present #MadeinNigeria mantra—a campaign aimed at encouraging consumers to patronize locally made products—has opened up a door of opportunities for local companies to introduce original and fresh food and spice products for the Nigerian market. Of course, there will also be exporting opportunities.
With the above development, traditional open-markets are gradually giving way to convenience stores and supermarkets. The implication on food and spice companies is that they now need to pay even greater attention to how they package their foods and spices. Because convenient stores, grocery stores, and supermarkets will require the products they stock to be well-packaged food and spices with improved nourishments for their customers, food and spice companies must raise their game—and they are beginning to do just that!
Food and spice companies must bring value to consumers and create experience that lasts beyond taste.
In an ever-demanding consumer market, food and spice companies are realizing more than ever that their food and spice products need to be well-produced and well-packed, attracting consumers and increasing turnovers. They are also realizing that beyond getting consumers fed and spiced up, they need to produce food and spice products that bring value to consumers and create experience that lasts beyond taste.
To get ahead in today’s food and spice market, food and spice companies need strong brands, not just food and spice commodities. Branding doesn’t just start and end with logo designs and graphics for food and spice packaging, but goes beyond those. If branding is part of marketing, then marketing must begin right from the start—conceptualization or creation of the food or spice product. From what the food or spice product is made of to what it looks like; from what it is called to what it does, getting these things right ensures that you are also getting branding right. By so doing, your branded food or spice product is not only fresh and original, but also exciting for consumers who buy the product in open markets, kiosks, stores, and supermarkets.
Without strong branding for food and spice products, there is little or no value to explore, maximize, or protect.
Strong food and spice brands create great value—both commercial and intellectual assets that endear your distinctive food and spice products to your target market, wherever they are. Whether marketed and sold in Nigeria or anywhere in the world, your greatest asset is your intellectual property in the branded food or spice product.
And this is where the need for brand protection with a comprehensive intellectual-property strategy comes in. Because when you completely own your food or spice brand, buyers, distributors, suppliers, and even your competitors will respect it. Why? Because you completely and really own it. How?
How to Completely and Really Own and Protect Your Food and Spice Products
Every food and spice business—from startup to multinational—creates intellectual property. Protecting the intellectual property in the beginning ensures that your food and spice business does not lose its greatest assets to fraudulent or unhealthy infringements.
By protecting your Intellectual property in your food and spice business, you are protecting everything from the production of ingredients and creation of recipes to the labelling, marketing, exportation of the finished product. So your branded food or spice product is your intellectual property.
Below are types of intellectual property relevant to food and spice products. Any food and spice company should consider using some or all of these IP rights to increase its brand value and company worth.
Enterprises often have winning secrets. These secrets are confidential information that give them some advantage, putting them ahead of their competitors. This is why the World Intellectual Property Organization (WIPO) defines trade secret “as any confidential business information which provides an enterprise a competitive edge which could be; commercial assets, manufacturing or industrial secrets which protects against unfair competition depending on the jurisdiction the product is”.
So it could be advertising strategies, clients and suppliers lists, consumer profiles, distribution methods, manufacturing processes, and sales methods. Food and spice companies often have one or more of this information and they keep it confidential to stay in business.
Though a trade secret does not require registration with any government agency, it must still be eligible for protection. There is no law regulating trade secrets in Nigeria. But Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) provides a general standard:
- The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question);
- It must have commercial value because it is a secret; and
- It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements).
So how can trade secrets be protected against unauthorized use by competitors or other unauthorized persons? It would be best to draft a nondisclosure agreement (NDA) with all the employees of the company. The NDA should be well drafted to comprehensively protect your company and charge anyone who reveals or attempts to reveal the company’s trade secret to third parties. Though Nigeria does not presently have a trade secret law or any comprehensive unfair competition law, NDAs are essentially contractual, thus enforceable. In other countries where trade secret is regarded as one of the powerful tool for economic development, there are trade secret laws. The United States’ Uniform Trade Secret Act is a good example. Nigeria needs to step up as well. But before Nigeria eventually wakes from its deep sleep, food and spice companies must be alert by using this trade-secret tool to protect their food and spice business.
Some trade secrets may not just be confidential information only but also inventions that would qualify for grant of patents. In the food sector, patents broadly cover everything from food composition to food-making process. Patent can be granted for new ingredients, new products, new packaging, new processing methods, and other novel elements. Your food and spice packaging features may provide new storage advantages that significantly delay food spoilage and the process involves an inventive activity. In an industry where brand imitation is high, you want to ensure that you protect your innovative food and spice products so you enjoy exclusive rights to your inventions.
To ensure that eligible for patent in Nigeria—similar with other countries—the food or spice product must meet the requirements listed in Nigeria’s Patents and Designs Act. Section 1(1) of the Act requires that the invention must be:
- results from an inventive activity;
capable of industrial application; and
- constitute an improvement upon a patented invention and also new, results from inventive activity, and is capable of industrial application.
The statutory requirements above seem daunting for food and spice businesses since patent focuses more on processes and new chemical compounds.
But if the invention in the food or spice product or process can be proved to be unique, the company may proceed to file and protect it in the country or jurisdiction it wishes to operate in or expand to.
Trademarks can include words, logos, shapes (of the food or spice product itself or its packaging), slogans, specific colours and sounds. Think of popular but distinctive trademarks as Coca Cola, Mr Biggs, Indomie, etc.
For any food or spice company that wants to be successful, trademark is critical. Without an effective branding strategy, trademark protection will be weak, needless, or outrightly useless. This is why we briefly discussed branding in the opening part of this work.
With effective branding, your food and spice products will stand out in the market. They will be distinctive and valued. Consumers will easily recognize them. This will help you gradually achieve a competitive market for your products in a highly competitive food and spice market. And this is why at the early stage of making any new product, you need to engage your brand team to identify the unique qualities of the product and create a distinctive brand for it. It is this brand quality that will then be the basis for trademark protection. By keeping the product name and brand qualities such as colour, logos, etc distinct, obtaining trademark protection becomes easier.
In section 67 of Nigeria’s Trademark Act, trademark is essentially a mark used or proposed to be used in relation to goods to indicate a connection in the course of trade between goods and some person having the right to its use. To register a trademark in Nigeria and other countries, distinctiveness of the mark is crucial. For the purpose of determining the distinctiveness of marks, section 9 of Nigeria’s Trademark Act requires that the applicant’s mark must contain:
- the name of the company, individual, or firm represented in a special manner;
the applicant’s signature;
- an invented word or invented words;
- a word or words having no direct reference to the character or quality of the goods and not being in accordance to its ordinary signification, a geographical name or a surname; and
- any other distinctive mark.
In order to maintain trademark, it must be in use for 5 years else anyone can apply for it to be revoked, including your competitors. The need to brand a business’s food and spice products is vital and cannot be overemphasized. It aids consumer recognition and goodwill, helping to grow business and increase brand value.
Both copyright and industrial designs (discussed below) are not types of intellectual property rights that are as relevant to the food and spice industry as patents, trade secrets, and trademarks are. But copyright and industrial designs may be of some use to a food and spice company at some point.
Copyright protects literary works, granting authors exclusive right to produce, distribute, assign, license, or do other things with the work. In food and spice business, getting a list of ingredients or a specific cooking method protected under copyright may be difficult. This is because copyright only protects the expression of ideas in a fixed medium, not the ideas themselves.
So a cookbook containing recipes, for example, will be eligible for copyright protection. It is most likely that food and spice companies will benefit more from protecting their food- and spice-making processes, methods, or techniques under trade secret or patent than under copyright law.
Of course, marketing materials and publications such as banners, booklets, flyers, handbills, songs, videos, etc will all be eligible for copyright protection. Brand marketing supports brand recognition. And brand recognition needs all the brand protection it can get.
Industrial design protects distinctive lines, colours, or shapes. Section 12 of Nigeria’s Patents and Designs Act defines industrial design as “any combination of lines or colours or both, and any three-dimensional form, whether it is associated with colours or not, intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain technical result.”
Because industrial designs protect lines, colours, and dimensions, industrial designs can help food and spice companies distinctively package their food and spice products. This can be achieved by uniquely using or combining lines, colours, and any three-dimensional forms to design their food and spice products. There will then be protection for the products against counterfeiting and other infringing acts by both fight-dirty competitors and other counterfeiting agents.
It is not every design that is registrable under the Act. For a food- or spice-related design to qualify for protection, the design must be new and it must not be contrary to public order or morality. Thinking of what could possibly be contrary to public morality? Well, imagine a cucumber-flavoured, diary-food bottle with a cucumber shape.
As we were saying …
Determining Which Intellectual Property Apply to Your Food and Spice Business
If identifying the types of intellectual property that are relevant to the food and spice industry is not milk, determining the following can be bone:
- which type or types of amongst the intellectual property identified above applies (or apply) to your food and spice business;
- whether any of your food and spice products, food-processing, or spice-making processes is eligible for protection; and how best to go about the process of registering, managing, monitoring, and maximizing your intellectual property in the identified food and spice products, food-processing methods, or spice-making processes eligible for protection to grow and expand your food and spice business and gain market share in the industry.
To break the 3 bones above, expertise is required to avoid any mistakes.
IP registration, management, monitoring, and maximization need comprehensive strategy. A food and spice company with an eye on growth and expansion must have a strategic approach to brand protection. This ensures that brand protection positions the business for growth, and not just an end in itself.
When a food and spice company manages its brand protection rightly, it will significantly improve its market share.
A comprehensive intellectual-property strategy is critical to brand protection in the food and spice industry. IP protection will strengthen the brand’s value and establish the brand as a competitor to beat in the food and spice Industry. It will also support the food and spice company’s expansion, breaking new grounds both locally and internationally.
In IP protection, delay is dangerous.
Senator Iyere Ihenyen is the Lead Partner of Infusion Lawyers, an IP & IT law firm. Rita Anwiri Chindah, ACIArb is an Associate at the firm.
© Senator Iyere Ihenyen, Rita Anwiri Chindah, ACIArb 2017
All rights reserved. Do not republish without a written permission by Infusion Lawyers, the publishers of the original post, Intellectual Property and Brand Protection in the Food and Spice Industry.