Companies should understand laws around product offering

New companies in the brewery and winery industry need to understand the importance of the laws and regulations, such as copyright and trade marks, associated with the products and services that breweries may want to offer, says Spoor & Fisher partner Eben van Wyk.

He advises that a trade mark attorney should be consulted during the planning stages of establishing a new brewery.

“Such an attorney will conduct a trade mark clearance search through the Companies and Intellectual Property Commission (CIPC) to ensure that the trade mark is distinctive and not similar to another company’s trade mark or logo,” he says.

Should a scenario arise where the trade mark is similar to that of another company, the CIPC may refuse an application for registration of the trade mark, which could lead to the business having to change its brand.

“One needs to understand the importance of a trade mark, as it distinguishes one product, or business, from another.”

The new brewery should also ensure that the rights to that particular trade mark have been secured and that its trade mark will not infringe on the rights of others, he adds.

“Something else that new breweries must consider, specifically with regard to the logo, is to ensure that the brewery owns the copyright in that logo.

“If the logo was designed by a third party, it’s important to transfer ownership of the copyright – as paying the designer for the logo does not automatically imply ownership of the copyright,” he explains.

Van Wyk says, ideally, when a business launches a new product and the logo is designed by a third party, it secures copyright ownership, in addition to the trade mark ownership. It is always advisable that a prospective brewery owns the copyright in its logo, he adds.

A brewery can also obtain ownership of copyright of the packaging in which it sells its product, in addition to the logo and the trade mark rights in the name of the brewery and its product names.

New breweries can maintain confidentiality, trade secrets and ownership of recipes by having employees and contractors sign non-disclosure agreements. Such agreements compel them not to reveal trade secrets to competitors or anyone who may benefit from knowing and possibly using the trade secrets.

Meanwhile, new breweries should be informed about the regulations relating to product marketing, advertising and the potential risks in the brewery and winery industry. Such regulations may include product packaging and advertising laws that pertain to that particular industry.

Legal experts should keep business owners updated on regulatory changes that may occur to ensure a more proactive approach, he concludes.

This article was first published in Engineering News.

Date published: 18 November 2019
Author: Spoor & Fisher

Tags: trade marks brewery regulations packaging advertising