The Food Lawyer

If you are going to treat your farm like a business, you will need to think about seeking protection for the trademark rights to your logo and marketing materials. 

A typical farmer, say one who produces commodity crops like soybeans or milk, has absolutely no need of trademark protection because they take no part in the marketing of the stuff they make. The job of the commodity producer is to turn inputs into crops as cheaply as possible. Selling the crop to the general public is not part of the process. By definition, a commodity crop has no personal identity of the grower. The bulk which commodity farmers produce is co-mingled with crops of other farmers. There is never any need, therefore, for a typical farmer to put their goods behind a single consolidated label to tell the buying public “These are my soybeans, I am proud of them, and they are different from the soybeans of everyone else.”

Farm Dreamers, especially those operating for a profit or value-adding, are totally different from their commodity cousins. They do need to label their products with distinctive phrases or artwork, purely because what they do is so atypical in our farming culture. Their financial survival absolutely depends on their ability to stand-out in the marketplace from the Velveetas and and General Mills’ of the world. Trademark protection is how the small-scale farmer can achieve, maintain, and protect the distinctiveness that makes them such compelling alternatives to Big Food. 

To begin to protect your brand, trademark rights are only as far as your state capitol. State trademark protection is often quick, cheap, and the application process is usually very cursory. In exchange for this ease of filing, the applicant gets some seriously limited protection. Trademark protection usually ends at the state line. (This is not entirely the case, but a longer discussion would bore you to death). 

The gold standard of global trademark protection is registration with the United States Patent and Trademark Office. At $275.00 per application, filing is relatively expensive. It usually takes about 6 months for a mark to be reviewed by an attorney working for the Trademark Office before a mark can ultimately be accepted for registration.

The Office has several reasons to scrutinize each application so thoroughly. The Office has the duty to make sure each application carves out a distinctive piece of intellectual property. It will only register unique names and graphics that will not have a likelihood of confusing the public with regard to marks which have been previously registered. An attorney experienced with trademark law will be able to perform a search for you and assess the distinctiveness of your mark before filing. 

The Office will also deny applications that fail to create a strong brand. The Office uses what it calls the “spectrum of distinctiveness” to assess the strength of each application.

“Fanciful” names like “Xerox” or “Kodak” are completely made up words, generated by marketing geeks on Madison Avenue. These are actually the easiest types of trademark to pursue because they are so unique and distinctive. 

“Arbitrary” trade-names make seemingly random associations between words and products, like calling a line of computers “Apple”.

“Suggestive” names create an implication that a product or service has a distinctive characteristic, just as “Blu-ray” DVDs suggest lasers or beams of emitted light. 

Protection for fanciful, arbitrary, and suggestive names are generally easy to acquire. At the other end of the spectrum, however, are the descriptive and generic trademarks which cannot easily (almost never) be trademarked. Descriptive and generic marks use ordinary words to merely describe a product or service, like “The Good Cheese Company”. Choosing trade names that fall into these categories is absolutely the worst way to begin to build a brand for your product. 

If you intend to pursue trademark protection, it is essential to involve an experienced attorney early in the design of your logo. You may pay good money to a local artist for an absolutely beautiful logo that can never be trademarked, either because it looks like an earlier mark or because it falls on the weak end of the trademark spectrum. 

Great products need great trademark protection. Independent farmers have lots to worry about, including unfair competition from other unscrupulous types that will piggy-back on your success by putting products out into the market that resemble yours. Such unfair practices are much easier to stop if you have  a registered trademark in your arsenal. At the very least, get a state trademark. If you can afford it, or if you have ambitions to invest in the future of your brand, federal is the way to go, and the earlier you seek trademark law guidance the better off you will be. 

You can read more about food law at the blog of Jason Foscolo LLC, The Food Law Specialist.