COVER STORY
MORE COMPLEX
THAN IT SEEMS
When My Food Bag was recently told
to stop saying hello to its customers in
its marketing by German multi-national
HelloFresh, the issue amused more than
just a few people. How could, the food
delivery company asked, one entity stop
another from using a common word of
welcome? Who, stated founder Cecilia
Robinson, would have thought the simple
word hello could cause so much trouble.
“What’s not cool,” said the company in a
tongue-in-cheek letter back to HelloFresh,
16 AUGUST 2018
“is you fellas trying to stop us saying
‘hello’ to our Fresh Start family. That’s
just not the Kiwi way. In fact, we thought
you guys must be pulling our leg?! Down
here in God’s Own, all of us have the right
to say hello, kia ora or g’day. Just ask
Winston.” However, those that dig beneath
the surface of a witty press release about
trade marks may realise that the issues
are not as simple as they first appear. NZ
FoodTechnology magazine has asked two
experts their opinions.
IP APERITIF, MAIN COURSE
AND DESSERT… NOT JUST
AFTER-DINNER MINT
Is a commonly used greeting something you can trade mark? The recent
spat between My Food Bag and giant German food company HelloFresh
over the former’s use of the latter’s name in the sentence “Hello, fresh
start the programme” posed just that question, and more.
Stop using the words ‘hello’ and ‘fresh’
next to each other, said the German
company. Why should we? said the
Kiwi company. The squabble is a
salutary reminder that even in the commodity
world of food marketing, intellectual property (IP)
issues can still bring you grief. IP is a complex
area of law which is perilous to navigate on your
own.
Think forward
The New Zealand food and beverage industry is
a creative and energetic sector but with one weak
spot – the ‘number eight wire’ mentality. We are
too ‘kiwi’ for our own good. We think we can ‘do
it all’ and ‘she’ll be right’.
Too often we see exciting new F&B businesses
which have developed great concepts and
successfully ‘wowed’ the market jeopardising
their fortune by failing to protect the intangible
part of their brain-child. It is often an
afterthought. Not enough time and resources are
spent on protecting core assets of the business,
such as its brand, its reputation and the look of
its products. This can have disastrous results;
making it too easy and tempting for competitors
with deeper pockets to take advantage.
There is a popular conception that it is too
expensive to obtain IP protection or to enforce
its IP when it is infringed. However, plenty within
an F&B business has potential to be protected
without incurring significant costs:
• Registering designs and trade marks with the
Intellectual Property Office;
• Obtaining advice on how copyright (which
cannot be registered in New Zealand) can be
leveraged to protect certain aspects of your
business;
• Using a well-drafted simple confidentiality
agreement to significantly minimise the risk
of your recipes, preparation methods or
processing of ingredients becoming public
knowledge.
These are all steps, to name but a few, which
are relatively inexpensive to take and may prove
invaluable in future.
Think early
Problems often arise when a start-up takes too
long to get its IP sorted. You spend a long time
and a lot of money perfecting a concept, and
realise it has huge potential – it may be too late
to patent it or to protect the look of the resulting
product with a registered design if it’s already
been made public.
You put in solid hours with a great ad agency at
significant cost to develop nifty packaging and
By Sebastien Aymeric