What’s Special About the Drink You’re Enjoying

welocalize September 2, 2019

From soft drinks to cocktails, the array of drinks available on the market is astounding. Few sectors of the economy tailor to a consumer’s specific tastes like the beverage industry. These products face an unusual challenge in that they rely on their unique qualities but are difficult to patent. Below, we discuss the nature of the industry, the challenges of protecting their intellectual property, and some forward-thinking approaches that could work in the future.

Bottoms Up: Growth in the Beverage Industry

The global beverage industry is a juggernaut – with an annual worth of $1.4 trillion, beverages have seen steady growth year over year. The beer industry alone is valued at nearly $100 billion a year. While certain products, like fruit juices and soft drinks, have seen some stagnation, energy drinks and craft beers have seen enormous growth. According to data from the World Intellectual Property Organization (WIPO), almost 1,000 beverage patents have been filed since 2016.

It should come as no surprise that intellectual property disputes are common in the beverage industry, given its tremendous growth. The lengths manufacturers will go to protect a recipe is often extreme. Given the value of recipes, is a patent the answer?

Brand Protection in the Beverage Industry

There are three avenues to protecting intellectual property in the beverage industry: copyrights, trademarks, and patents. For the most part, copyrights do not play a significant role in the beverage industry outside of protecting logos and artwork. Given that copyright law treats a recipe as a set of facts, it is impossible to copyright a drink recipe. There are other ways to protect a drink, however.

Trademarks are designed to protect a brand name or image. You can trademark everything from names to logos, including the names of beverages. However, these protections are only in place as a guard against brand confusion. They may protect the name or trade dress of a drink, but they do not cover its recipe.

The only possible protection for a drink recipe is through the patenting process. For example, according to U.S. federal law, a patent is available for “any new and useful process, machine, manufacture, or composition of matter.” A new recipe for a beverage could potentially count as a “new and useful process” or a “composition of matter.” Unfortunately, there are significant hurdles that prevent the patenting of most beverage recipes.

The Challenges of Patenting a Beverage

Obtaining a patent on a new drink is not impossible if it relies on a unique ingredient or technique; however, some technicalities can trip up a patent application. For example, a beverage must be novel to receive patent protection. In patent terminology, novelty refers to whether or not an identical version already exists. It’s reasonable to make a novelty argument for a complicated case. But it’s a stretch to suggest that more straightforward drinks haven’t been conceived at an earlier point in time.

A recipe must also be non-obvious. It also has to pass a “common sense” test that shows the drink is more than just a minor alteration of another established beverage to obtain a patent. The patent examiner could also reject a beverage recipe application if they feel the recipe was a combination of previous creations.

The difficulty of obtaining a patent is not the only consideration. It’s questionable if patents efficiently protect a recipe in the first place. If a patent is successful, the process to make the drink and the recipe involved become public knowledge. While patents give the maker grounds to bring a civil action against patent thieves, doing so would not be as practical in the beverage industry as in the automotive sector.

After all, if the recipe for Coca-Cola does not need patent protection, does any beverage?

Alternative Strategies for Protecting Beverage IP

There are better options for protecting intellectual property in the beverage industry than patenting a drink recipe. Instead of attempting to protect the recipe, some drink makers are relying on patents to protect the process of making the drink. For example, in recent years, beverage makers have patented inventions to age rum 20 years in only a week.

drawing from rum aging barrel patent application
Figures from Lost Spirits’ patent applications 14/594,944 and 14/795,841, which detail their process to chemically age rum and whiskey 20 Years in one week.

Protecting the copyrights and trademarks surrounding a beverage could also bear more fruit than a drink patent. While chasing down bars that use a particular recipe seems futile, taking on manufacturers using a bottle, logo, or trade dress that is confusingly similar to their product might make more sense for most drink makers.

Let’s talk about global IP protection over a beverage at AIPPI World Congress, IPO Annual Meeting, or AIPLA. Contact us to set up a time to connect.