Food and drink: Is your brand flavour of the month?

By Anita Jaynes on 26 February, 2019


Vaping has taken off in a big way and the industry for flavoured liquids is growing just as fast. But what has this to do with the food and drink industry? Megan Jefferies, Commercial Litigation and Dispute Resolution partner at law firm Thrings, explains how your product could be the next vape flavour if you haven’t registered it correctly. 

The UK is now the biggest market for e-cigarettes in Europe, with an estimated 2000 retail outlets. Market research group Euromonitor International estimates that over 35 million adults globally now vape and this figure is predicted to rise to almost 55 million by 2021. 

Finding themselves in an increasingly competitive market, those producing (and selling) e-liquids are looking for new and appealing tastes and themes. We’ve seen a rise in flavours mirroring big name brands such as Skittles, Nutella and Red Bull, resulting in a wave of trademark infringement cases in the US and the UK.

Whilst there has been some social and moral commentary in the media (mostly around flavours being seen to target younger users), the threat to your local business might seem a bit far flung. However, consider this:

You are a South West confectioner or drinks manufacturer who has launched a new product line with a carefully researched brand name. The product and brand become well known, whether in the region, the UK or globally. A vapour manufacturer capitalises on the success of your product, copying your flavour and referring to your brand by name. Guess what? Unless you’ve registered your brand correctly, they may be able to do so legally . 

Your food and drink’s trade marks are likely to be registered in some or all of classes 29-33, which cover the various types of beverages and edibles out there. But registering them in class 34 will protect them from imitation within the tobacco and related products sector, which includes vaping products.

So the message for the South West food and drinks industry is first and foremost: protect your brand. Of course, we might be more likely to see Thatchers-flavoured e-liquid than Helen Browning hot dog-flavoured vapour, but Heston Blumenthal turned the world of taste upside down – so who can say? 

To manufacturers or retailers of vaping liquids: do your homework and don’t attempt to piggyback on the success of existing brands or you may find yourself on the wrong end of a law suit. 

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Pictured above: Megan Jefferies, Commercial Litigation and Dispute Resolution partner at law firm Thrings