Key Takeaways

  • Food trademarks can protect names, logos, slogans, packaging, and even product shapes associated with edible goods.
  • Both common law and registered trademarks offer protection, but federal registration provides stronger nationwide rights.
  • Food trademarks extend beyond words and logos to cover trade dress, distinctive colors, sounds, and product configurations.
  • Strong, unique marks are easier to protect, while descriptive or generic terms are difficult or impossible to trademark.
  • Businesses in the food and beverage industry often file multiple trademarks for different brand elements, from product lines to packaging design.
  • Enforcement and monitoring of food trademarks are critical to prevent infringement and protect brand value.

Food trademarks distinguish and identify edible products of one maker from those of another one. They can be in the form of any design, name, symbol, or a combination of these. You may also hear trademarks get called by the following terms:

  • Brands
  • Logos
  • Marks

When a mark identifies a service as opposed to a product, it becomes a service mark. An example of this would be "Shake Shack," which has a trademark to designate its fast food products and a service mark denoting the fast-food service of the restaurant. 

Sometimes, a brand name becomes inseparable from a product, and that is when trademark erosion occurs. A product and brand become genericized when they are indistinguishable from one another, which makes registering it no longer possible. While becoming a household name may seem desirable on the surface, many companies try to prevent genericizing from taking place. 

Manufacturers trademark products that come on the market to minimize the risks of another business using the name without authorization. That is known as trademark infringement. Such is the case when you come across knockoffs of famous brands like Fendi purses and Rolex watches. 

To put trademark infringement into perspective, take adhesive bandages for example. It would not be unlawful if you were to call a non-Band-Aid brand bandage a Band-Aid, but the company of the off-brand bandage could not name its own product Band-Aid.

What Is the Difference Between Common Law and Registered Trademarks?

Common law trademarks get designated with the TM symbol, or SM symbol for a service mark. In the United States, anybody may attach the symbols to their logo. Also in the U.S., a trademark does not have to be a registered mark to exist in establishing an infringement action. 

Shake Shack has a registered trademark that protects its burger symbol and name. However, there is no registration for the graphic design that appears on the cups for their shakes. If no one used the same graphic before they did, then the logo likely has a common law trademark, which would make Shake Shack's ownership of the graphic valid as all common law trademarks get determined by first use. 

As it stands, the first person to use a brand receives priority when competing for the mark's ownership. Protecting a trademark only applies in the geographic location where it gets an acknowledgment or is in use. In a majority of circumstances, the ® symbol gets attached to a mark once it has gotten approval from the U.S. Patent and Trademark Office (USPTO).

It is not impossible, but it is more difficult for someone to be successful in claiming the infringement of a logo or otherwise challenge a mark after it gets registered. To have the rights of supreme ownership, one must show evidence of being the first to use the trademark. After five years of having trademarking rights, no one can contest a registered mark's national protection. An example of this would be the restaurateur and New York chef, Tom Colicchio, who has kept restaurants throughout the United States from using the term "Craft."

Why Food Trademarks Are Important for Businesses

Food trademarks are a vital asset for companies in the culinary and beverage industry. With thousands of new food products entering the market each year, trademark protection helps businesses stand out from competitors and secure consumer trust. A recognizable trademark reassures customers about the source and quality of the product, creating brand loyalty and repeat business.

For startups and small food businesses, a trademark can be one of the most valuable assets because it signals professionalism and long-term commitment. For larger companies, trademarks are crucial for protecting market share and preventing copycats from exploiting established goodwill. Without trademark protection, businesses risk consumer confusion, loss of revenue, and dilution of brand identity.

Do the Food Trademarks Only Apply to Names and Logos?

Trademarking a food product also means sometimes registering the brand for the food's shape. The creators of the chocolate bar KitKat trademarked the three dimensional and four-fingered form of their famous candy. 

Nestle made its first KitKat in 1935, and since pursuing efforts to register the trademark in 2006, the company has had to deal with setbacks brought forth by their candy rival, Cadbury. The actions of Nestle's candy competitor held up attempts by Nestle to protect their chocolate's signature shape. That ended not too long ago when at last Nestle got the snack trademarked in 2013.

Another well-known edible trademark is the "plume," which comes out of the foil-wrapped Hershey's Kiss that was registered along with the Kiss name in 1924 by Milton S. Hershey. He also had patents for other inventions, such as the "Candy Holder" and "Machine for Cutting Candy." However, they did not meet the same public enthusiasm or achieve the level of popularity as the many other well-known products of Mr. Hershey.

Types of Protectable Food Trademarks

Food trademarks extend well beyond brand names and logos. Many aspects of a product can serve as a source identifier, including:

  • Slogans and Taglines: Memorable phrases like “Finger Lickin’ Good” or “I’m Lovin’ It.”
  • Packaging and Trade Dress: Distinctive packaging, color schemes, or container shapes (e.g., Coca-Cola’s contour bottle).
  • Sounds and Jingles: Audio elements associated with a food brand, such as advertising jingles.
  • Colors and Patterns: Unique color combinations tied to a product or brand (for example, Tiffany blue-style protections applied in other industries).
  • Product Shape or Configuration: Iconic product forms like the KitKat chocolate bar or the Hershey’s Kiss plume.

Choosing a Strong Food Trademark

The strength of a trademark depends on how distinctive it is. The U.S. Patent and Trademark Office (USPTO) evaluates food trademarks along a spectrum:

  • Fanciful Marks: Invented words with no prior meaning, such as “Oreo.” These are the strongest.
  • Arbitrary Marks: Existing words applied in an unrelated way, like “Apple” for electronics or “Subway” for sandwiches.
  • Suggestive Marks: Hint at product qualities without being direct, such as “Grey Poupon.”
  • Descriptive Marks: Directly describe the product, e.g., “Cold & Creamy Ice Cream.” These can only be trademarked after acquiring distinctiveness.
  • Generic Terms: Common names of products (like “milk” or “bread”) cannot be trademarked.

Choosing a unique and distinctive trademark increases the likelihood of USPTO approval and ensures stronger enforcement rights.

This breadth of protection helps food companies build a cohesive brand identity that resonates across multiple touchpoints, from store shelves to advertising campaigns.

Enforcement and Protection of Food Trademarks

Registering a food trademark is only the first step—businesses must also actively protect their rights. This includes:

  • Monitoring: Watching for potential infringers in the marketplace, online, and in USPTO filings.
  • Opposition Proceedings: Challenging applications for marks that are confusingly similar to your own.
  • Cease-and-Desist Letters: Formal notices demanding that infringers stop using a protected mark.
  • Litigation: Filing lawsuits when necessary to prevent consumer confusion and protect brand reputation.

Failing to enforce a trademark can lead to brand dilution or even loss of rights if the mark becomes genericized over time. Consistent enforcement ensures the continued value of food trademarks as business assets.

Frequently Asked Questions

1. Can recipes be trademarked?

No. Recipes are typically protected under trade secret law, not trademarks. Trademarks protect brand identifiers, not formulas or ingredients.

2. How long does a food trademark last?

A registered trademark can last indefinitely, provided the owner files required maintenance documents and continues to use the mark in commerce.

3. Do I need to trademark my food business name and logo separately?

Yes. Each element—name, logo, slogan—should be filed as its own application for maximum protection.

4. Can I trademark the shape of a food item?

Yes, if the shape is distinctive and non-functional, such as the KitKat bar or Hershey’s Kiss.

5. What happens if someone copies my food trademark?

You may enforce your rights through cease-and-desist letters, USPTO opposition proceedings, or litigation to stop unauthorized use and protect your brand.

If you need help with food trademarks, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.