Tastes & tIPples
™
The very first issue of a brand new guide to intellectual property for the Food & Drink industry in the UK and Europe
Issue 1 - Jan 2023
Contents
A message from the editors
Welcome to the first edition of “Tastes and tIPples”™- a quarterly publication by Marks & Clerk LLP that focuses on Intellectual Property in the UK and the EU food and drink sector.
In this edition of Tastes and tIPples™, Erik Rõuk and Martin Gutwillinger from our Luxembourg office advise on the Benelux trade mark system as our European ‘Country in Focus’ piece for food and drink clients interested in protection in this region and the wider EU.
For many the new year may comprise of a health focused diet resolution, and in recent times, ‘Veganuary’. Gareth Williams and Jasmine Percival discuss patent protection for meat substitutes and the process. Meanwhile, Eve Brown and Shaun Anderson discuss why obtaining a license to use the Vegan Society’s certification mark may help to target flexitarian consumers.
With ‘Dry January’ in full swing, Hernán Ríos and Elise Cant consider the emergence of low alcoholic drinks, and the potential for future divergence in the marketing and advertising rules when compared with alcoholic beverages.
The Spirits Business reported that Booze-free brand Lyre has been encouraging consumers to continue visiting bars and pubs during 'Dry January' and giving away 10,000 free non-alcoholic cocktails. The team at M&C try their very own ‘Mocktail Monday’ and we find out what Gareth Jenkins' tipple of choice is.
Join us for a client Q&A with Marks & Clerk’s Meena Murrin and Tim Sandford, CEO of nuUnlimited (me~nu® brand), a health focused brand that consolidates and personalises nutrition, allergens and standards in one unified solution.
Faith Chong and Claire Keating take a look at the new legislation around the promotion of high fat, salt and sugar (HFSS) products and the branding choices involved.
We must take the opportunity to say farewell and good luck to our co-editor, Eve Brown, as she re-locates to New Zealand. She has been instrumental to the launch of this publication and we will miss her valued contribution.
We wish you, our colleagues, family and friends all the best for a healthy and prosperous 2023!
Meena Murrin and Eve Brown
Country in focus – Benelux
The Benelux Union is a politico-economic union between Belgium, Luxembourg, and the Netherlands. The union was first envisaged in the year 1944 when the exiled representatives of the three countries signed the London Customs Convention, which established the Benelux Customs Union. The Benelux Economic Union came about in 1958 and became the model for future European integration. Indeed, the economic and political co-operation between the Benelux countries inspired further European co-operation and may be considered one of the forerunners of the European Union.
At the time of writing this article, the Benelux Union boasts a population of roughly 30 million residents, and a combined GDP of EUR 1.431 trillion while covering only 1.7% of the surface landmass of the EU.
In terms of intellectual property, the Benelux Union was also one of the forerunners, setting the basis for a regional unified trade mark system. The Benelux Convention Concerning Trademarks was signed on 19 March 1962 and entered into force on 1 July 1969. It also established the Benelux Trademark Office to implement the convention with an existence separate from The Benelux Union itself.
Soon thereafter, in 1974, the Benelux Treaty on drawings and designs was signed, and the Benelux Office for Drawings or Designs entered operation. It is thus that the scene had been set for regional intellectual property development, which introduced concepts such as unitary regional trade marks and designs, and seniority derived from earlier national rights.
In 2006 the Benelux Convention on Intellectual Property entered into force, replacing the multiple previous rules and conventions with a single treaty, modernising the IP landscape in the region and bringing about the current Benelux Office for Intellectual Property (BOIP). In 2021, the BOIP celebrated its 50th birthday. Although the importance of national offices has somewhat diminished in the field of trade marks and (industrial) designs with the success of the EU Intellectual Property Office and EU-wide unitary protection, the Benelux Office for Intellectual Property remains an important organisation for economic development in the region.
Trade mark filing figures have been around 20,000-21,000 for the past five years, with increased figures coming close to 24,000 applications in the most recent two years, 2020-2021.
Country in focus: Benelux (cont'd)
This article aims to take a closer look at the Benelux system and what makes it stand out in the European intellectual property family.
How is Benelux trade mark law structured?
Contemporary trade mark law in the Benelux is governed by the Benelux Convention on Intellectual Property (trademarks and designs) (BCIP) and its implementation and functioning is overseen by the BOIP, based in the Hague. The Benelux Union is also party to a number of international agreements, such as the Paris Convention, the Madrid Agreement and Protocol, the TRIPS agreement, and others.
As such, the Benelux Union has similar membership of international treaties related to the regulation of intellectual property as other member states of the European Union. For example, it is possible to designate the Benelux via International Registrations, and it is possible to claim priority from Benelux trade mark applications. Being part of the European Union (and all 3 Benelux countries are founding members of the European Economic Community) has resulted in the harmonisation of Benelux trade mark laws with that of the EU.
It is important to note that although the individual countries fall under the umbrella of the BOIP and the Benelux trade mark system, they have retained their separate court systems for proceedings relating to, for example, IP infringement. The BCIP sets out that the authority of court decisions handed down in one of the three States shall be recognised by the other two States, if the decision is no longer open to opposition or appeal by a court of cassation. The Benelux have also established the Benelux Court of Justice, which has the power to hear questions concerning the interpretation of the BCIP and its implementing regulations.
Language
The BOIP has two official languages – French and Dutch. The working languages of the BOIP are Dutch, French, and English.
Documents relating to transfers, priority, licences etc. will also be accepted, if drawn up in German.
In opposition matters, the language will normally be the working language that the application was filed in, unless the application was filed in English in which case the opponent can choose which working language (English, French, or Dutch) to rely on in the proceedings. If the application is the designation of an International Trade Mark registration, the opponent can choose the language but the applicant will be given the opportunity to disagree and choose one of the other official languages (Dutch or French).
The same language rules also apply to revocation and invalidity proceedings. The parties may also jointly choose one of the working languages of the office. The underlying principle is that the applicant cannot be forced to use a language he does not understand, but the opponent can file his submissions in his preferred language, which will then be translated by BOIP.
Registered vs unregistered rights
Under the BCIP, with the exception of owners of well-known trade marks within the meaning of Article 6bis of the Paris Convention, there is an obligation to register trade marks in order to rely on them. Or, in other words, no one may claim in court protection for a sign deemed to be a trade mark, unless that claimant can provide evidence of registration of the trade mark which it has filed.
Country in focus: Benelux (cont'd)
The law does not preclude right owners from invoking “ordinary law”, which allows for objections to be raised against unlawful use of signs which are not regarded as trade marks under the BCIP.
In other words, the BCIP does not recognise unregistered trade marks. However, other unregistered rights may potentially be relied upon under the national laws of the member states i.e. Belgium, Luxembourg, and the Netherlands. For example, Belgium and Luxembourg offer limited protection to trade names and company names. The Netherlands provide limited protection for trade names. Such protection will normally be very narrow, subject to use, and limited to the geographical area where the name is used.
The registration of a Benelux trade mark, however, provides prima facie evidence of rights in the trade mark which extends across the whole Benelux territory. Although the validity of a registration can be challenged, unlike with unregistered rights, the existence of the registration does not have to be separately proven by filing evidence or demonstrating use of the mark in commerce unless five years have passed since its registration.
Representation requirements
As with the EUIPO, the Benelux office does not require a professional representative to be appointed at the time of filing the application but it does require an address for correspondence in the European Economic Area (EEA).
Any professional representative with an address for correspondence in the EEA can act before the BOIP.
If the BOIP has any reason to doubt the representative’s authorisation, it may request a Power of Attorney for confirmation. Otherwise, a Power of Attorney is generally not required and authorisation is presumed.
Examination process
Once an application is filed, it undergoes a formalities and absolute grounds examination. Following a successful examination process, the trade mark will be accepted and published for opposition purposes. The opposition period for Benelux trade marks lasts two months from publication and is not extendable.
Should no oppositions be filed, the trade mark application will progress to registration soon after the expiry of the opposition period and a digital registration certificate will be issued by the BOIP. No paper registration certificates are issued – although it is possible to order a certified copy. The usual timeframe from application to registration is 3-5 months if no objections are raised.
Accelerated registration
The BOIP offers an “accelerated registration” procedure by the payment of an official fee. In this process a registration can be granted within days. This registration can then also be used as a basis for enforcement.
However, the registration is provisional only – a 2 month opposition window and substantive examination follows the initial registration, so further refusals could be issued.
Nevertheless, the accelerated registration procedure does provide the option for quickly obtaining a registered trade mark for use in enforcement, anti-counterfeiting activities, domain name disputes, etc.
Country in focus: Benelux (cont'd)
Oppositions
As identified above, once the Benelux trade mark is published, there is a two-month non-extendible opposition period. In order for an opposition to be correctly filed, the opponent will need to list the grounds relied upon and file substantive arguments within two months.
A defence by the applicant is required in Benelux oppositions within two months of the opponent’s arguments. If no defence is filed, the opposition will succeed by default.
Cooling-off periods are available in 4 month increments, if the parties wish to negotiate. Furthermore, during the proceedings themselves extensions and suspensions are possible, however, these will be allowed at the discretion of the hearing officer. The parties can request a suspension jointly, or the office may suspend the proceedings, if it believes there are grounds to do so.
Oral hearings may be held in opposition matters either at the parties’ request, or if the BOIP deems that there are grounds for a hearing.
If multiple oppositions are filed, the BOIP will generally decide to examine the opposition the most likely to succeed first and suspend the other oppositions in the meantime.
Costs are awarded by the BOIP at the conclusion of opposition proceedings.
It is possible to appeal the opposition decision to a court of cassation in one of the Benelux states.
Revocation and invalidity
Similar procedures apply to cancellation actions which can be divided into two:
- revocation actions – on grounds of non-use of a Benelux trade mark, or if a mark has become generic or misleading through the use that has been made of it; and
- applications for invalidity (either based on absolute or relative grounds).
The main difference between the two is that a revocation action, if successful, will apply from the date of the request, whereas a declaration of invalidity removes the registration from the BOIP register with retroactive effect.
Generally, mutatis mutandis, the same rules apply to revocation and invalidity proceedings.
Duration of protection and use requirements
Benelux trade marks are registered for 10 years and can potentially be maintained in force indefinitely with the payment of renewal fees.
Following the registration of a Benelux trade mark, there is a 5-year grace period during which the proprietor can initiate use of the trade mark in commerce.
Country in focus: Benelux (cont'd)
Once the grace period ends it is possible for third parties to initiate cancellation proceedings and apply to revoke the trade mark registration on grounds of non-use.
One immediate consideration that flows from the foregoing is that as long as a Benelux trade mark is within its grace period it will form a valid basis for opposition or enforcement through infringement proceedings regardless of whether or not the trade mark has been put to genuine use in the Benelux.
As such during the first five years from the registration of the trade mark relied upon, it will not be possible for a defendant to rely on the non-use of a Benelux trade mark to defend itself.
Conversely, once a Benelux trade mark has been registered for five years, it will be possible for the defendant to request proof of use at an early stage in proceedings and the onus will be on the owner of the trade mark to furnish evidence of use. Whether or not a trade mark has been put to “genuine use” in the Benelux is examined on a case-by-case basis and will depend on the nature of the goods and/or services in question and the peculiarities of the market concerned.
Evidence of use will be acceptable from the relevant preceding five-year period, e.g. as calculated from the date of the filing of an opposition. As a general rule evidence of use from the three months immediately preceding the relevant date will not be considered, so as to avoid situations where a trade mark is used only for the purposes of providing evidence.
It is also possible to provide justifications for non-use, e.g. when the use of a particular mark has been delayed due to reasons outside the proprietor’s control. Such reasons could relate to, for example, in the context of medical drugs, delays in obtaining approval from national health authorities for the marketing of the products.
Preparations made for starting to use a trade mark in commerce may also be taken into account.
Priority and Seniority
It is possible to rely on a first filing of a trade mark application in the Benelux as a basis for a priority claim in overseas territories during the first six months following the filing of the application. Claiming priority allows the effective date of validity of a subsequent application to be dated back to the original filing date of the first application. Overseas priority will also be recognised when filing Benelux trade marks.
Seniority is a unique feature of the EU trade mark system. It has its roots in the process of harmonisation of the internal market and allows for the information (including the date of validity) of earlier national registrations for the same trade mark be recorded against a subsequently filed EU trade mark.
The effect of recording a seniority claim against an EU trade mark is that the EU trade mark will obtain the same effective date of validity in relation to the goods and/or services in question in the particular territory concerned as that of the original national registration. The national registration can then be allowed to lapse in favour of savings on renewal costs. It is possible to record multiple seniorities against an EU trade mark.
Seniority can be claimed from Benelux trade marks. The Benelux system also recognises “seniority” of earlier Dutch, Belgian, and Luxembourgish registrations prior to the entry into force of the Benelux trade mark system.
Veganuary and certification marks
For many the new year may include a health focused diet resolution, and in recent times, ‘Veganuary’. According to a YouGov poll consisting of 2129 adults surveyed between 18-19 August 2022, 9% of adults in Great Britain have participated in ‘Veganuary’ since the first pledge in January 2014. 46% of participants gave personal health as one of the reasons for signing up. 12% of participants had maintained a vegan diet since taking part, whereas 85% of non-vegan past participants had reduced their consumption of animal products.
According to V-Label’s ‘Key Consumer Insights on plant-based dairy in 2022’ (December 2022) there is a growing flexitarian tend across the globe, with 31% of global consumers identifying as flexitarians in 2022. This is the second largest consumer segment after those that regularly consume meat/dairy products:
According to V-Label, 82% of consumers that eat meat substitutes believe that meat substitutes are healthier. Aside from sustainability, health was a key reason for consumers purchasing vegan products. Owing to the number of flexitarians, it is no surprise that vegan brands are seeking to position products as healthier in order to appeal to this segment.
Notable brands in this space include the plant-based meat brand ‘Huera’. One of Huera’s key aims for 2023 is to offer 100% plant-based foods that are superior from a nutrient-density stand point. Plant-based brand ‘Huel’ targets health conscious consumers that may not have the time to select, buy, prepare and/or cook a meal made with whole foods.
Huel markets its products as containing a balance of 26 essential vitamins and minerals, protein, essential fats, carbs, fibre and phytonutrients in a single product. ‘MyVegan’ is a fitness focused brand that sells, among other things, vegan gym and training supplements including protein powders and snacks.
The health focused marketing message isn’t the only thing that Huel and MyVegan have in common. Both brands have secured a licence from ‘The Vegan Society’ to use the Vegan Society’s certification trade mark on products that meet the stringent criteria that enable the product to be acceptable to vegans.
In 2021, V-Label published the outcome of a consumer survey which found that 23,000 consumers internationally found that 91% of those surveyed preferred products with an independent stamp guaranteeing that the product is vegan, without having to read all of the ingredients list or spend time comparing and looking for alternatives.
Having the Vegan Society’s stamp of approval may be a useful tool for consumers that are switching to meat and dairy alternatives for Veganuary and beyond, whether on a permanent or a flexi basis. The Vegan Society work with manufacturers and suppliers across a range of fields. The requirements include, among other things:
- The manufacture and/or development of the product and its ingredients must not involve or have involved the use of any animal product, by product or derivative;
- The development and/or manufacture of the product, and its ingredients, must not involve or have involved, testing of any sort on animals conducted at the initiative of the company or on its behalf, or by parties over whom the company has effective control.
- The development and/or production of genetically modified organisms must not have involved animal genes or animal-derived substances
Having a certification mark on a product can add credibility and promote consumer confidence, particularly among flexitarians or consumers signing up to Veganuary and beyond, who may not be accustomed to purchasing vegan products.
Restrictions on the promotion of HFSS products and its branding implications
The UK government introduced new legislation restricting the promotion of food and drinks high in fat, salt or sugar (HFSS) in December 2020.
The restrictions aim to encourage consumers to make healthier dietary choices and forms a key part of the government’s strategy in tackling obesity.
The Food (Promotion and Placement) (England) Regulations 2021 implements restrictions on the promotion of HFSS products in England by volume price (e.g. ‘buy one get one free’ or ‘3 for 2’ offers) and location (e.g. at store entrances and checkouts), both online and in store. The location restrictions came into effect on 1 October 2022, while the multi-buy restrictions will be implemented in January 2024.
The government also plans to introduce a 9pm watershed ban on TV for HFSS products and a restriction of paid-for HFSS advertising online, though these measures have now been delayed to 2025.
The announcement of the new legislation and HFSS advertising bans is welcomed by health campaigners and advocacy groups, and is undeniably a step in the right direction in terms of promoting healthier diets. However, the HFSS restrictions are a costly burden for many businesses in the food and beverage industry, which have been forced to reformulate existing products or launch entirely new HFSS-compliant products in order to minimise the impact on sales.
From a branding perspective, the introduction of new and reformulated non-HFSS products raises the question of how these products should be launched. Should they be marketed as a reformulation replacing the original HFSS product, as a ‘healthier’ sub-brand under the HFSS brand, or as a new, independent non-HFSS brand?
Looking at some of the measures implemented by major brands, KP Snacks have reformulated several of their existing snack products to be non-HFSS, including Tyrells Lightly Sea Salted crisps, Hula Hoops Puft, Popchips and Penn State Sour Cream & Chive pretzels.
HFSS restrictions (cont'd)
Similarly, Kabuto Noodles have completely reformulated their entire instant noodle range to be 100% vegetarian and HFSS-compliant.
Other brands have launched healthier or ‘lighter’ variants of existing HFSS products, such as Walkers which has introduced new flavours containing 45% less salt than the traditional varieties: Mild Cheese and Onion, Lightly Salted and A Dash of Salt & Vinegar. Pladis has also expanded its portfolio with the roll out of McVitie’s Digestives Wholesense and McVitie’s Rich Tea Delights – lighter, non-HFSS versions of the popular biscuit lines.
Meanwhile, a number of healthier offerings have been released under the name of new sub-brands.
For instance, Kettle Chips launched its new HFSS-compliant ‘Bread Bites’ range, whilst Mars Wrigley introduced its ‘Triple Treat’ line, offering fruit and nut based variants of its Snickers, Mars, Galaxy and Bounty bars.
Unsurprisingly, it seems that most major brands have opted to reformulate existing products or launch related HFSS-compliant sub-brands rather than creating completely new and independent non-HFSS products.
Doing so would enable them to preserve and take advantage of the brand reputation they have built up over the years, whereas it would be much more difficult (and costly) to launch an entirely new brand.
Nevertheless, as the new rules come into force and the government continues to clamp down on the promotion of HFSS products, it is likely that any new brands or products entering the market will strive to be HFSS-compliant in order to evade the marketing and advertising restrictions – a positive step forward in encouraging healthier eating habits amongst consumers.
Funny meat
A look into the novel meat industry
As we become more aware of the need to develop healthy, sustainable and resilient food systems in our fight against climate change, consumer habits are rapidly changing. There is greater demand for meat alternatives as the number of people adopting vegetarian and vegan diets is growing. In 2022, Ipsos found that 46% of British people aged 16 – 75 are considering reducing their intake of animal products. This increasing demand is feeding investment with the Good Food Institute reporting a record $5 billion investment in the alternative protein industry in 2021.
Meat alternatives fall into two categories:
- Meat substitutes, which may be plant or microbe-based.
- Lab-grown meat, also known as cultivated or cultured meat.
Meat Substitutes
Meat substitutes are becoming ever more dominant on the market as consumer demand soars. A variety of meat substitutes are widely available such as plant based, fungi and yeast derived products.
Popularity of these meat substitutes is exemplified by global fast-food outlets McDonald’s, Burger King and KFC all now offering meat alternatives.
Companies such as Beyond Meat and Impossible Foods, among others, are retailing meat substitutes that imitate animal products. A rising number of patents are being filed in this sector as investment grows to meet demand.
Patent protection is not just being sought for the final food product but also the processes used to make such a product and other by-products produced in the process.
It can be difficult to obtain patent protection for a meat substitute, with patent examiners often arguing that there is merely routine optimisation of combining known ingredients. However, Impossible Foods has been able to overcome this by claiming the inclusion of plant-based heme and excluding animal derived proteins. Heme is an essential molecule found in all animals and plants and is “what makes meat taste like meat.” Heme is a precursor to haemoglobin, it is a coordination complex consisting of iron in a porphyrin. As well as contributing to taste, heme is also a contributor to the distinctive smells we associate with cooked meat.
Making plant-based heme in a lab has provided a novel ingredient that is patentable over existing meat substitutes. Impossible foods have patent filings covering the production of heme containing proteins and genetically modified organisms that have increased heme biosynthesis, as well as methods of preparing food products.
However, in the absence of a novel ingredient it can be possible to obtain protection for a product restricted by the process from which it is produced.
Recently the EPO revoked a key patent held by Impossible Foods related to the inclusion of heme in meat substitutes titled ‘Methods and compositions for affecting the flavour and aroma profile of consumables’.
Funny meat (cont'd)
After being sued for patent infringement, Motif FoodWorks argued the ingredients used by Impossible Food have been around for decades and thus were not patentable in the first place. Following their success in achieving revocation, Motif FoodWorks are challenging the validity of more patents held by Impossible Foods which they say have similarities with this revoked patent. It will be interesting to see how these actions may change the market landscape of meat substitutes.
Other companies such as Revyve are also pioneering new meat alternatives that require minimal processing to produce sustainable products derived from microbes, uniquely replicating the taste and texture of animal products.
Lab-Grown Meat
Lab-grown meat is not artificial meat, it is real meat that happens to be grown in a lab, offering a more sustainable alternative to traditional farming; the process is often termed “cellular agriculture”. Cells used to produce cultivated meat can be derived in several ways, such as using well-characterised cell lines in tissue culture as well as harvesting cells from a living animal and cultivating them to grow outside of the animal's body. The cells are then exposed to changes in medium composition to trigger differentiation into the skeletal muscle, fat and connective tissues that make up meat. This can then be shaped into cuts of meat such as hamburgers, and bacon with the same taste consumers know and love, without animals being farmed to create these authentic meat products.
Lab-grown meat has hit the headlines several times since the triumph of the first lab grown burger. However, there are still challenges to be overcome to increase scalability and reduce costs. It is expected that lab-grown meat will eventually become common place and IP will be critical for companies to dominate this exciting future market. Given the high cost of R&D in developing lab-grown meat it is understandable that companies will want to protect this investment by filing for patent protection.
Protection may be sought for the development of cell lines suitable to produce lab-grown meat, culture and differentiation methods, as well as techniques of forming an authentic cut of meat.
To date Singapore is the only country where lab-grown meat is available to the consumer. Here GOOD Meat (the cultivated meat division of the company Eat Just, Inc) sell a lab-grown chicken product. However, it is expected that such products will become more common as in the US the FDA has recently declared one lab-grown meat product derived from chicken cells, developed by Upside Foods, safe for human consumption. This decision is likely to accelerate interest in such products and the number of patents filed.
As interest in meat substitutes and investment continues to grow, more technical advances are sure to be made in the development of novel meats. It is fascinating to see the innovation and competition thriving in this sector, and it will also be interesting to see the reception that such products receive from consumers. Through seeking protection for the unique compositions developed and methods of manufacturing, patent owners of such technologies will be in a position to become market leaders in a growing field.
For any advice or information on protecting your inventions, please contact the biotechnology experts at Marks & Clerk LLP.
Low in alcohol but high in popularity
In 2021, IWSR Drinks Market Analysis, predicted that by 2024, the low and no-alcohol drinks market would have grown by 31%. The study focused on 10 key markets: Australia, Brazil, Canada, France, Germany, Japan, South Africa, Spain, the UK and the US. Over the last few years, the Committee of Advertising Practice (“CAP”) and the Broadcast Committee of Advertising Practice (“BCAP”) has reviewed some of its rules surrounding the advertisement of low-alcohol products. The CAP is a body that creates, amends and enforces non-broadcast advertising and direct and promotional marketing and the BCAP covers broadcasting.
The CAP code splits beverages into the following three categories:
- ‘Alcoholic Drinks’ – beverages containing more than 0.5% alcohol by volume (“ABV”);
- ‘Low-alcohol Drinks’ – beverages containing more than 0.5% ABV and up to and including 1.2% ABV;
- ‘Alcohol Alternatives’ - beverages containing 0.5% ABV or less.
In the UK there are rules that govern marketing communications for Alcoholic Drinks. Among other things, the rules state that content for Alcoholic Drinks should not imply, condone or encourage immoderate, irresponsible or anti-social drinking.
By way of example, in October 2022, the Advertising Standards Authority (“ASA”), the UK’s independent advertising regulator, found that one of Bill’s Restaurants Ltd’s advertisements had breached the CAP Code. Bill’s Soho’s ad used the phrase “a lovely glass (or several) of prosecco” within the context of the offer’s 90 minute duration; this was found to encourage excessive drinking.
Further details can be found in Marks & Clerk LLP’s Scottish food and drink publication, “Scran & sIPs”.
Prior to May 2022, in order to ensure the responsible marketing of Alcoholic Drinks, the CAP Code had fairly stringent restrictions concerning the marketing of the amount of ABV in both Alcoholic Drinks and Low-alcohol Drinks. Certain communications could only factually state the amount of ABV in Alcoholic Drinks and Low-alcohol Drinks and no ‘preference claims’ could be made.
Since no preference claims could be made by marketers, any statements seeking to promote Low-alcohol Drinks on the basis that they had a lower level of ABV when compared with Alcoholic Drinks were not permitted.
The work of CAP and BCAP relating to the marketing and promotion of Low-alcoholic Drinks is ongoing. For example, one of the factors under consideration in a consultation that took place between February and July 2022, was the depiction of pregnancy in ads for Low-alcohol Drinks and Alcohol Alternatives.
The proposals are due to be finalised in Q1 of 2023, and it will be interesting to see if there will be further divergence between the promotion of Low-alcohol Drinks and Alcoholic Drinks in the future.
Q&A with Tim Sandford
CEO of nuUnlimited
Thank you for joining us for the inaugural issue of Tastes & tIPples™. The theme for the issue is ‘new beginnings’ so please could we start by learning about your own beginnings. Can you explain to our readers a bit about nuUnlimited and what problems you are working to solve?
Sure thing. nuUnlimited was originally set up to provide provenance and traceability solutions for a variety of sectors and we were working with companies from motor scooter manufacturers to craft beer bottlers.
However, when we started working with a small chain of hospitality businesses to provide ingredient provenance for their hero ingredients of fish, beef, lamb and so on, it became clear that the hotchpotch of restaurant technologies they used were costing a fortune while adding to staff workload as opposed to delivering efficiency.
That was when we decided that we wanted to pivot nuUnlimited to focus solely on the food and restaurant technology sectors and put our provenance and traceability technology at the centre of the system to create me~nu®, to deliver meaningful digital transformation for the sector.
That meaningful digital transformation comes from seamlessly connecting data between business functions to eliminate errors, reworking and enabling more people in the business to use that data effectively to operate the business and deliver the kind of service that their customers expect. If you want to find out more, you can read the flagship brochure here.
You pride yourselves on delivering the first 2nd generation food and restaurant technology platform. Why is that important?
The current (1st generation) of food and restaurant technologies were developed to digitally transform elements of the food and restaurant sectors. However, they are narrow in focus solving only one problem – point of sale, table booking, allergen identification, home delivery ordering.
Our observations showed that in many respects using multiple, disconnected systems adds work and increases the risk of errors – the opposite of what digital transformation is supposed to deliver.
The task we set ourselves was to design a complete, end to end system that delivers everything needed by the food and hospitality sector in a single, end to end solution that should:
- significantly reduce systems costs for businesses using me~nu®;
- increase operational efficiency by at least 20%;
- reduce the compliance workload by at least 50%;
- significantly reduce if not eliminate errors; and
- use accurate detailed food provenance enabling businesses to demonstrate their commitment to quality and sustainability amongst other desired attributes.
nuUnlimited Q&A (cont'd)
Screenshots of waitstaff order interface highlighting the allergen and nutritional information baked into me~nu®
What does me~nu®/nuUnlimited provide that a consumer wouldn’t be able to get from a restaurant’s website or social media channel?
As well as seeing the menu for the restaurant, something over 75% of consumers do, me~nu® enables consumers to dig deeper and explore the whole story of the food from farm to fork including detailed provenance, standards, food miles and a great deal more. Importantly the consumer app once launched will enable consumers to personalise the menu to fit their specific dietary needs (allergens, religious and lifestyle diets, nutrition), and once they have decided they want to eat there they will be able to reserve a table and even order in advance if they choose to.
We were intrigued to read that you have created ‘a unique eco system between’ businesses, producers and customers with food firmly at the centre. Can you tell us a bit more about this and what makes it different to anything else on the market?
The more we got into the whole issue of provenance, which is not just about standards and sustainability, the more we realized that without putting a detailed, accurate record of the food from farm to fork we would not make any significant improvements on what is currently on the market.
With undeclared allergens accounting for a significant proportion of food recalls we recognised that we had to go much further than the required ‘one step back one step forward’ rule in the regulations and map everything from farm to fork properly.
That led us to the idea of developing a way to connect producers and manufacturers together by creating a farm to fork ecosystem that connects consumers to the complete story of their food and the people that produce it.
Marketplace from me~nu® is the final piece in the ecosystem, due to launch in September. This will create a complete end to end environment that is designed specifically to support and connect food and hospitality businesses that are focused on local, quality and sustainable produce.
nuUnlimited wants us to celebrate the diversity of British and overseas food on offer – are there any particular cuisines that you think are going to be popular in 2023 that we might not have celebrated in the UK until now?
As sustainability and the environment continue to loom large in people’s minds and the news, we see more restaurants and chefs focusing on developing dishes and menus that use ingredients that are more seasonal, sustainable and locally sourced.
International cuisines will continue to play an important part in our diet and West African cuisine along with Colombian cuisine are two that are beginning to trend strongly in the South East.
The concept of farm-to-fork dining has undergone a resurgence (we don’t think it ever went away!) as the result of Covid-19. How does me~nu® help consumers understand the provenance of their food?
In short, me~nu® makes the entire story of the food on their plate available from source to plate. Directly from the dish on the menu consumers can dive down into the provenance of the food to found out where it came from, who made it, how and what went into it.
This can be done directly from the menu and allows consumers to dive all the way down to the source and see the complete story for themselves.
nuUnlimited Q&A (cont'd)
It’s no secret that the food and drink industry continues to face huge challenges. How does your product me~nu® help the sector to operate more commercially and hopefully with greater cost effectiveness?
There are several ways we expect to do this but to keep our response shorter than a dictionary here are a couple of examples:
me~nu® provides front of house staff with all of the information needed to answer questions, so they no longer need to run backwards and forwards to ask the chef. A time and motion study we did showed that waiting staff using me~nu® to take orders in the restaurant have 15 to 20% more time to spend with customers, which typically results in bigger orders and happier customers.
- When we did a full provenance trace on a burger being sold in a restaurant we found that all the ingredients used came from within 20 miles and were produced to a very high quality. When the restaurant told the story on the menu, sales of the burger went up and the restaurant was able to raise the price by 15% because customers were proud to support local producers.
And finally, what are you most looking forward to in 2023?
Everything from welcoming new customers to achieving our business goals, and of course continuing to strengthen our IP.
Meet the Team
What are your areas of expertise?
All things trade marks but primarily advise clients on trade mark strategies and portfolio management.
What type of clients do you work with?
As with most trade mark attorneys I work across a large scope of sectors but have specific interest and experience in food and drink, beauty products and sporting apparel and goods. I look after the firm's larger clients in these areas.
What are your career highlights to date?
Early on in my career, I successfully defended a local dental practice against the might of Lacoste. The dental practice adopted and sort to register a smiling crocodile, which seemed to cause some ripples in the Lacoste legal department.
Later on in my career, I organised and hosted an international mediation, defending a sporting brand against various legal actions from the estate of old band.
When two sides come from very different angles and with very different expectations mediation can always be tricky but in this instance was very successful.
What is your favourite dish?
Anything pasta…… However, with a gluten free diet this was not always the case but now the gluten free pasta is actually very good.
What is your top tipple?
Everything red!
What are your favourite restaurants?
Pubs with quality grub.
Who are your dream dinner guests?
Till Lindemann, Anthony Bourain and Eddie Izzard which should cover off the music, food and comedy I like.
What is the most adventurous food/drink you’ve ever tried?
Having many allergies anything “new” could be considered adventurous but probably travelling East and having birds nest soup was quite adventurous for me.
What are your favourite hobbies?
During lockdown I learnt to forge and make knives. Although my family are now sick of receiving steak and kitchen knives for Christmas and birthdays I still like improving with each blade.
Mocktail Monday
For the inaugural issue of Tastes & tIPples™ we decided to follow the lead of 'Dry January' and participate in Mocktail Monday.
Eve Brown
Associate
Eve sat down for an Espresso Martini with an alcohol free twist
Elise Cant
Trainee Trade Mark Attorney
Elise's dog was able to enjoy a Cranberry Mocktail, made with cranberry simple syrup and tonic water
Faith Chong
Trainee Trade Mark Attorney
Faith's mocktail featured a delicious blend of Earl Grey & Elderflower
Mocktail Monday
Meena Murrin
Principal
A mug from the Christmas market in Venice now filled with mulled apple – apple juice simmered with orange peel, cinnamon stick, ginger and cloves
Loreta Dimech-Mencattelli
Clients & Markets Executive
Loreta's ‘botanical floral fizz’ – a blend of elderflower, hibiscus and geranium – courtesy of Belvoir Farm
Shaun Anderson
Trade Mark Administrator
Shaun opted for a mocktail with lovely passion fruit flavours
Marks & Clerk set up its first office in the UK in 1887. Today, we’re a leading global intellectual property firm, working in partnership with businesses of all shapes and sizes all over the world. Providing them with people whose legal, technical and commercial expertise exactly meets their needs. Shaping our services around them. Protecting, enforcing and maximising the value of their intellectual property to support them in achieving their business ambitions.
We have a passion for the world of food and drink
The world of food and drink is subject to constant change. Gaining and retaining the competitive edge and preventing competitors from reaping the rewards of your research and investment is a constant battle. We make sure your IP is properly protected as you expand into new product lines or territories. No other IP firm has the in-house capability of Marks & Clerk in technological knowledge and legal expertise.
Industry focus
With Marks & Clerk, you’ll work with people with a passion for the world of food and drink – people who are immersed in the changes taking place in the sector and able to anticipate potential IP opportunities and problems.
To find out more, visit www.marks-clerk.com or email info@marks-clerk.com