At this year’s Bread & Jam Festival 2022, Edward Carstairs joined a panel to discuss how food and drink businesses can maximise their value whether that is for seeking investment or achieving a sale. He was joined by Sally Wynter the solo founder (and now exited) of MUHU gin and corporate solicitor Paul Chiappe, Managing Partner at Joelson with over 20 years experience in working with F&D businesses. The panel discussion was chaired by Fiona Fitzpatrick a brand growth consultant and founder of Brand Growth Heroes.
We work with a lot of different F&D businesses of various sizes and at different stages of development. From newer challenger brands all the way through to established global businesses as well as investors and entrepreneurs looking to buy and sell businesses.
When it comes to the IP, there are several issues to consider. How can you build your exit into the early stages of your business? How can you maximise value on a limited budget and what can you do to make a big impact? Understand the role of IP, how to secure trading partners and the agreements you need to have in place to win big when you’re selling. Our recommendations are set out below.
What will an investor or purchaser look for when considering to invest in your business or buy it?
The key here is to make sure that the focus remains on your product, sales, team strength, growth potential and so on. Make sure that you have addressed the fundamental issues on the legal side concerning IP so that when the due diligence process is underway it runs smoothly and does not cause a distraction. Fundamentally the IP strategy will need to map on to the business strategy so that you can clearly set out that the business has freedom to operate in the core territories, owns the trade mark in those territories and retains ownership and control of the IP.
You (probably) won’t have everything sewn up from the outset (not least because you will be seeking investment to scale up) but at least be able to point to a strategy document. This gives the investor confidence in you, that there is a plan in place and that the issues can be addressed.
Freedom to operate – the red flags that can stop a deal in its tracks
Think about the business plan. Make sure there is freedom to operate in the key markets. If someone else has conflicting earlier rights then you could be facing an infringement action and resulting injunction preventing the use of your trade mark, not to mention an award of damages and costs order against you on top of an enforced rebrand. If this sort of risk exists it is sure to be a red flag to an investor or purchaser.
Split branding across different markets can be seen as problematic. It happens even to the biggest brands. Think the deodorant brands Lynx and Axe, and in Australia Burger King are Hungry Jacks.
To avoid these problems, plan early. Consider which are the projected core markets and conduct searches to see if anyone else has earlier rights. Don’t forget that when it comes to trade marks this should include the territories where you will be selling and can also be where manufacturing and packing is undertaken. When you are coming up with a new brand name try not to get wedded to one in particular. Instead have a few possible names and work down the list until you find one that is available.
Protect your trade marks
These are the essence of your commercial identity. Trade marks are also business assets that can be sold or against which a loan can be secured.
A business with brands that have growth potential i.e. that can be registered because they are distinctive and not descriptive is going to be more attractive because those rights help to maintain the market position. They can be enforced against third parties using or applying to register something similar for a similar product.
File applications to register your trade marks to stop someone getting ahead and “doing it for you”. In many countries unregistered rights are given little, if any, weight and so in the absence of a trade mark registration it will be very difficult to prevent a third party using or applying to register an identical or similar name for an identical or similar product.
When filing also look ahead and future proof new product developments by using a suitably broad specification of goods. Once an application is filed, new goods cannot be added to the specification and instead a new “top up” application would be required and so further cost.
Ownership – control the brand
When new IP is being created, make sure the business owns it. Remember that if you engage an external contractor to create a website or design new packaging, they will own the IP unless there is an agreement that says otherwise.
Your trade marks should be centrally owned by the business and sit in the correct name. This will help with enforcement and securing investment. Investors would want to see the IP in the name of the company rather than a personal name since on the face of it there is nothing to stop that person walking away with it.
Keep robust contracts with your business partners – this applies to manufacturers, licensees, distributors and anyone else you’re working with. Whilst relationships will start out positively they can break down over time such as when a distribution agreement comes to an end. Make sure contracts include clauses that acknowledge you as the owner of the IP rights and oblige your business partner not to apply to register your marks or anything similar as a trade mark, domain name, or anything else. Include clear language defining the scope of each distributor’s operation by specific territory, as well as what happens to any excess stock at the end of the agreement.