World Gin Day, 13 June 2020

As you enjoy a tipple of your favourite gin on World Gin Day (13 June), did you know that a bevy of intellectual property rights have helped bring your favourite drink to you?  Many gins pride themselves on the provenance and history of their recipes:

• Greenall’s The Original London Dry Gin remains unchanged from the original recipe which has been closely guarded by just seven master distillers in Greenall’s 250-year history;
• Haymans Old Tom Gin dates back to 1863; and
• the original Diplôme Dry Gin recipe dates back to 1945.

But how are these gins protected from their competitors?

Louise Brunero from Solubility takes a look at how patents, trade secrets, trade marks and design registrations may have played their part in the development, branding and commercial success of your favourite gin.

Patents may be used to protect a gin recipe if it uses a new, non-obvious method for producing the gin.  However, strict regulations around the distilling of spirits makes it unlikely that a significant new or inventive step is being used.  Given the longevity of famous gin recipes (250 years and counting for Greenall’s), patents also have the disadvantage that a patent only grants exclusive rights for 20 years and they are given in return for disclosing the process involved. After 20 years that process is available for anyone, including competitors, to use.  With these limitations in mind, it’s more likely different IP rights are being used to protect your favourite drink.

Trade secrets A secret tightly held and closely guarded is the best way to protect a recipe.  Limited disclosure to employees and/or only part disclosure to a number of employees (who combined hold the complete recipe) and stringent non-disclosure agreements can protect recipes indefinitely.  Greenall’s recipe for The Original London Dry Gin is one such tightly held trade secret. “Softer” examples of the tightly held Coca-Cola recipe and even Colonel’s Sanders secret herbs and spices show the potential power and longevity of a trade secret.  Taking active precautions to protect a trade secret is essential.  Businesses must also be prepared to act swiftly and decisively to shut down any leak.  Employees revealing the secret recipe or a competitor who may have poached a former employee and is now producing a suspiciously familiar recipe can be taken to court and sued for damages or an account of profit both of which could be significant. 

Trade secrets do not, however, protect against independent development. If a competitor were to create a recipe that coincidentally happened to be the same as Greenall’s gin recipe, Greenall’s couldn’t stop that competitor from using the recipe or selling their gin.  In such circumstances, trade mark registration (and a strong brand presence) could be particularly valuable as the competitor could not sell their gin as “Greenall’s The Original London Dry Gin”.

Trade marks are names, words, logos, shapes, colours, aspects of packaging, scents, or combinations of these which distinguish goods or services of one person from those of another. Trade marks which are merely descriptive of the goods and services, while often attractive to brand owners as they immediately tell customers something about the product (ie where it is from or how it tastes), may be difficult to register.  The strongest trade mark protection will come from marks which are invented or have no connection to the service or product. A unique mark will not only be registerable, but less likely to infringe the rights of third parties.  “The Botanist” is a perfect example of a unique mark for gin.

Designs In recent years the popularity of gin has surged and so too has the competition to stand out on the shelf.  Design registration can be used to protect unusual and unique bottle design while creating an attractive and readily recognisable gin of choice for the customer.

We’ve held you from your drink long enough.  There are still some online events available that you may be able to join as you raise a gin today.  Cheers from the Solubility team and just remember to celebrate World Gin Day responsibly.

If you would like legal assistance for your business such as IP assignments, licences, distribution agreements, etc or wish to know more about IP rights in recipes please get in touch with our team at Solubility.

You can also follow Solubility and me on LinkedIn and Solubility on twitter. We look forward to seeing you again for some more Everyday IP.