Page 9 - Beverage MasterOct Nov 2020
P. 9

Legal & Marketing

               shoes with a certain famous “swoosh” image on the  all unnecessary disclosure.  Trade secrets can be
               side, they should be reasonably able to assume that  just about anything that is confidential to your busi-
               pair of shoes was manufactured by Nike, Inc. and     ness and gives you a competitive advantage.  Some
               was made with the same degree of workmanship         examples, include recipes, client lists, manufac-
               and quality that they have come to expect from that  turing processes, marketing plans, and client lists.
               company.  That “swoosh” symbol, therefore, acts as  These are things that, if publicly disclosed, would
               a source identifier to tell the public that the product  harm the competitive position of the company and,
               was made by Nike, Inc.                               therefore, must be vigorously protected.

                 What may function as a trademark can be quite        One of the most famous trade secrets is the for-
               broad, including: the name of the business (e.g.,    mula for Coca-Cola.  This formula has been protect-
               Triple Nickle Distillery®), a logo (e.g., the “swoosh”),   ed for more than 130 years, sometimes through
               a color (e.g., the Home Depot orange or the UPS      extraordinary measures.  In 1977, The Coca Cola
               brown), even a scent (e.g., Verizon owns a trade-    Company withdrew its product from India, because
               mark on a “flowery musk scent” it pumps into its     in order to sell there, they would have had to dis-
               stores to help distinguish them from competitors’    close the formula to the government.  They decided
               environments).  Not everything can be trade-         it was more prudent to forego sales to one of the
               marked, however.  Slogans, words, and images         biggest populations on earth rather than risk disclo-
               that appear merely as decoration as opposed to a     sure of their secret recipe.
               means of identifying the supplier will not qualify for
               protection unless the applicant can demonstrate        Protecting trade secrets requires constant vigilance
               that the item has achieved “secondary meaning,”      in two ways.  First, the information should only be
               i.e., that the public has come to associate that     disseminated to people within the company, or
               item with the manufacturer.  As an example, in the   outside consultants, who need the information in
               1970’s McDonalds used the slogan, “You deserve       order to perform their duties for the company.  In
               a break today” in its commercials and other adver-   other words, the information is on a strictly “need-
               tising.  People came to associate this phrase with   to-know” basis.  Second, those few people who are
               McDonalds and in 1973 they were granted a trade-     given access, should sign non-disclosure agreements
               mark registration.  Incidentally, McDonalds briefly   with harsh penalties for breach of their duty of
               let this trademark go abandoned in 2014, but quick-  confidentiality.  Once the information gets out, it’s
               ly re-filed and the mark is still active today, more   nearly impossible to un-ring that bell, so there must
               than 45 years after it first registered.             be severe financial consequences to someone who
                                                                    leaks the information.
                 In general, marks also cannot be descriptive of the
               product or geographically descriptive of the source     Brian Kaider is a principal of KaiderLaw, a law
               in order to be registered as a trademark.  For exam-  firm with extensive experience in the craft beverage
               ple, one could not obtain a registration for just the   industry. He has represented clients from the small-
               words “India Pale Ale.,” because it simply describes   est of start-up breweries to Fortune 500 corpora-
               the product and does nothing to differentiate it     tions in the navigation of regulatory requirements,
               from every other IPA on the market.  Similarly, an   drafting and negotiating contracts, prosecuting
               attempt in 2019 to register the name “Philly City    trademark and patent applications, and complex
               Brewery” was refused as “primarily geographical-     commercial litigation.
               ly descriptive,” because the applicant could not
               demonstrate that people had come to associate                       For more information
               that name with its business as opposed to the many             please contact Brian Kaider at...

               other breweries in Philadelphia.                                       240-308-8032
                       Trade Secrets Protect Valuable                  
                     Confidential Business Information

                 Unlike other forms of intellectual property, there
               is no registration system for trade secrets, because,
               by their very nature, they must be protected from

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