Food and Beverage IP Checklist: Name Clearance, Label Review, Trade Dress Evidence, Recipe Protection, and Supplier Terms

By Casey Scott McKay · 2023-11-29

This checklist runs a food, beverage, or restaurant intellectual property programme in the order the deadlines fall. It opens with dual clearance - the register and the labelling regime in the same pass - because a name that clears one and fails the other cannot be used. It then builds the trade dress record from opening day, works packaging protection including the design patents the industry underuses, and turns an assumed formula into an actual trade secret through compartmentalisation, central supply, and controlled copies. It covers the co-packer and supplier terms that do more enforcement work than any registration, the label and claims review that must span the panel and the campaign together, and the franchise analysis that belongs before the first licensing conversation. It closes with enforcement triage and cadence.

IP and Technology > Trademarks | Checklist | Published 29 November 2023 - Updated 4 January 2025 | Casey Scott McKay - marksy.us

Summary. This checklist runs a food, beverage, or restaurant intellectual property programme in the order the deadlines fall. It opens with dual clearance — the register and the labelling regime in the same pass — because a name that clears one and fails the other cannot be used. It then builds the trade dress record from opening day, works packaging protection including the design patents the industry underuses, and turns an assumed formula into an actual trade secret through compartmentalisation, central supply, and controlled copies. It covers the co-packer and supplier terms that do more enforcement work than any registration, the label and claims review that must span the panel and the campaign together, and the franchise analysis that belongs before the first licensing conversation. It closes with enforcement triage and cadence.

Keywords: food and beverage checklist · dual clearance · register search · labelling analysis · standard of identity · flavour designation · statement of identity · nutrition panel · claims substantiation · natural claims · trade dress photography · brand standards manual · packaging design patents · container archive · trade secret compartmentalisation · co-packer exclusivity · overrun destruction · private label terms · franchise analysis · enforcement triage

How to use this checklist

| Phase | What it covers | |---|---| | 1 | Register clearance | | 2 | Labelling clearance | | 3 | Mark filings | | 4 | Trade dress record | | 5 | Packaging protection | | 6 | Design patents | | 7 | Identifying the secret | | 8 | Secrecy measures | | 9 | Co-packers | | 10 | Suppliers and distributors | | 11 | Private label | | 12 | People | | 13 | Label elements | | 14 | Claims and substantiation | | 15 | Advertising and influencers | | 16 | Franchise analysis | | 17 | Certification and origin | | 18 | Digital and delivery | | 19 | Enforcement triage | | 20 | Cadence |

Boxes marked [Gate] must clear before packaging is commissioned, before a specification is sent to a third party, or before a licensing conversation begins.

The matter. The name cleared the register with no conflicts. Packaging was commissioned, artwork approved, and a first run printed. Label review then found the name triggered the flavour designation rules, and the reformulation cost more than the packaging.

Phase 1. Register clearance

[ ] Search the register in the classes the business plan actually contemplates — restaurant services, packaged goods, or both.
[ ] Search common law use: local and regional businesses with rights in their trading areas, and retail and marketplace listings for products.
[ ] Assess descriptiveness, which is the recurring refusal because food names describe food.
[ ] Assess geographic terms under 15 U.S.C. § 1052 — primarily geographically descriptive where goods come from the place, deceptively misdescriptive where they do not and the misdescription is material.
[ ] Assess surnames, which chef-named businesses encounter constantly.
[ ] Check domain, social handle, and delivery platform availability.
[ ] Check key export markets for conflicts.
[ ] Record the search results, because they answer a later letter.

Phase 2. Labelling clearance

[ ] [Gate] Run this in the same pass as the register search, before packaging is commissioned.
- Why. A name that clears the register and fails the labelling regime is unusable, and the discovery after printing is expensive.
- Trap. Treating clearance as a trademark exercise and label review as a downstream production step.
[ ] Ask whether the name implies a standard of identity the product does not meet.
[ ] Ask whether it implies a nutrient content or health claim, which are defined regulated terms.
[ ] Ask whether it names an ingredient, triggering proportion requirements or the flavour designation rules at 21 C.F.R. § 101.22.
[ ] Ask whether it implies an origin the product does not have.
[ ] Confirm the name would not render the food misbranded under 21 U.S.C. § 343 as false or misleading in any particular.
[ ] For alcohol, confirm the name will survive pre-market label approval. See alcohol label approval requirements.
[ ] For supplements, confirm the name does not imply a disease claim.
[ ] Record the conclusion alongside the register search.

Phase 3. Mark filings

[ ] [Gate] File on intent to use under 15 U.S.C. § 1051 before announcing.
- Why. Locations and product launches leak, and priority is inexpensive relative to a rebrand.
[ ] File in the classes the business plan contemplates, not only today's operation.
- Trap. A restaurant filing only services, then bottling its sauce two years later with no priority in goods.
[ ] File the logo separately where it is distinctive.
[ ] File secondary marks — signature dish names, sub-brands, taglines — where they function as source indicators.
[ ] File in key export and expansion markets before entering them.
[ ] Set a watch service for confusingly similar filings and marketplace listings.
[ ] Docket declarations under 15 U.S.C. § 1058 and renewals.
[ ] Claim incontestability under 15 U.S.C. § 1065 when available for core marks.
[ ] Confirm specimens show use as a mark rather than as decoration or menu text.
[ ] Record marks with customs once registered, which supports counterfeit seizure and costs very little.

Phase 4. Trade dress record

[ ] [Gate] Photograph at opening and at every refit: exterior, entrance, dining room from several angles, bar, fixtures, lighting, tabletop, uniforms, menu, packaging. Dated.
- Why. Two Pesos v. Taco Cabana makes restaurant trade dress capable of inherent distinctiveness, but the claim is proved on the record.
[ ] Retain architect's drawings, interior specifications, fixture schedules, colour and material specifications, and signage artwork.
- Why. They distinguish arbitrary choices from functional necessity, which is the TrafFix Devices v. Marketing Displays question.
[ ] Write a brand standards manual, even for a single location.
[ ] Retain advertising featuring the look, particularly anything directing attention to it as an identifier.
[ ] Collect unsolicited press describing the space.
[ ] Track instances of copying with dates and photographs.
[ ] [Gate] Identify two or three elements that will persist across refits, and hold them constant.
- Trap. Comprehensive redesign every four years, which accumulates secondary meaning in nothing.
[ ] Assess functionality honestly: kitchen layout efficiency is functional, decorative treatment generally is not.
[ ] Assess aesthetic functionality where an element defines a category rather than a brand.
[ ] Do not build the strategy on product shape, which needs secondary meaning under Wal-Mart Stores v. Samara Brothers plus a functionality analysis that portioning and manufacturing frequently defeat.

Phase 5. Packaging protection

[ ] Treat packaging as the stronger claim, since it can be inherently distinctive where product configuration cannot.
[ ] Identify the elements comprising the overall commercial impression: colour scheme, layout, typography style, imagery treatment, container shape, closure, arrangement of required label elements.
[ ] Assess functionality: shapes driven by stacking, pouring, shelf efficiency, or manufacturing are functional.
[ ] Assess colour claims under Qualitex v. Jacobson Products, noting that colour in food frequently signals flavour or category.
[ ] [Gate] Archive every packaging generation physically with dates, plus artwork files.
[ ] Identify the constant elements across redesigns and protect those.
[ ] Register distinctive packaging elements as marks where distinctiveness supports it.
[ ] Monitor private label lookalikes, and assess whether the imitation reaches the arbitrary elements or only the category conventions.
[ ] Retain sales and advertising figures attributable to the packaging generation, which supports secondary meaning.

Phase 6. Design patents

[ ] Identify distinctive containers, closures, dispensers, and serving vessels.
[ ] [Gate] File under 35 U.S.C. § 171 before any public disclosure.
- Trap. Trade show samples, retailer presentations, and product photography going out are all disclosures.
[ ] Note that no secondary meaning is required, which is the advantage over trade dress.
[ ] Note the term under 35 U.S.C. § 173 matches a packaging generation.
[ ] Claim in solid lines and disclaim in broken lines to control scope.
[ ] File multiple embodiments covering variations.
[ ] Consider an embodiment claiming only the distinctive element, with the rest disclaimed.
[ ] File in export markets before disclosure, where grace periods are absent.
[ ] Record why this industry underuses the tool and treat it as the default for any container the brand intends to keep.

Phase 7. Identifying the secret

[ ] [Gate] Ask the honest question: could a competitor obtain this by buying the product and analysing it?
- Why. Reverse engineering is lawful, and for most consumer foods analytical chemistry answers the composition question.
[ ] Identify what is actually secret — a specific ratio, a processing step, a sourcing relationship, a proprietary blend.
[ ] Stop treating everything else as confidential.
- Trap. A programme that protects everything protects nothing, because the measures become unenforceable and unobserved.
[ ] Assess whether the process matters as much as the ingredients, which is where durable secrets live.
[ ] Do not patent a formula unless the process is genuinely novel and the composition is easily reverse engineered anyway.
- Why. Patenting publishes it and the term ends; a properly kept secret does not.
[ ] Record the identified secrets in a controlled document, because a business that cannot say what its secrets are cannot prove misappropriation.

Phase 8. Secrecy measures

[ ] [Gate] Compartmentalise, so no single person or facility holds the complete formula.
[ ] [Gate] Supply proprietary components pre-mixed from a controlled source, so kitchens and co-packers never see the composition.
- Why. This is the single most effective measure available and it is a supply chain design decision rather than a legal one.
[ ] Number, mark, track, and require return of written copies.
[ ] Execute confidentiality agreements before disclosure with employees, contractors, consulting chefs, suppliers, and co-packers.
[ ] Limit access to those who need it — a line cook needs one station's steps, not the master formula.
[ ] Obtain a written acknowledgement on departure of what the person had access to.
- Why. This document is worth more later than any policy.
[ ] Implement physical and system controls: locked storage, restricted directories, no personal-device copies.
[ ] Mark documents, files, and containers as confidential.
[ ] Train kitchen and production staff on what is confidential and why.
[ ] [Gate] Audit annually, treating any wall-posted or uncontrolled formula copy as a finding requiring remediation.
[ ] Apply the test: would the measures persuade a court the business treated this as a secret under 18 U.S.C. § 1836? If it needs explaining, it is no.

Phase 9. Co-packers

[ ] [Gate] Execute the agreement before any specification is sent.
- Trap. Sending the formula "so they can quote," then papering it afterwards.
[ ] Include confidentiality covering the formula, specifications, and process, surviving termination indefinitely for trade secrets.
[ ] [Gate] Include a prohibition on producing similar products for others, defined by reference to specific characteristics rather than by adjective.
- Why. Confidentiality alone does not prevent a facility developing a comparable product independently, and eighteen months later there is nothing to enforce.
[ ] Allocate ownership of process improvements developed during the engagement.
[ ] Restrict subcontracting, with flow-down obligations.
[ ] Include audit rights over production and inventory.
[ ] [Gate] Include overrun controls and destruction of surplus, with certification.
- Why. Overruns become grey market goods bearing the brand, outside the channel and outside quality control, and are frequently misdiagnosed as counterfeits.
[ ] Require return or destruction of specifications and residual materials on termination.
[ ] Allocate ownership of tooling, moulds, and dies, and require their return.
[ ] Address minimum volumes, capacity commitments, and failure to supply.
[ ] Where possible, structure supply so the co-packer receives a pre-mixed proprietary component.

Phase 10. Suppliers and distributors

[ ] Confirm confidentiality with ingredient suppliers.
[ ] Confirm continuity of supply for any proprietary ingredient, and what happens if it cannot be supplied.
- Trap. A single-source ingredient is a business risk dressed as a supply term.
[ ] Confirm supplier warranties on specification compliance and regulatory status.
[ ] For distributors, define territory and exclusivity precisely.
[ ] Define permitted trademark use and the form of any co-branding.
[ ] Define quality standards, storage, and handling requirements.
[ ] Define what happens to inventory and marks on termination.
[ ] Include restrictions on sales outside the territory, which is the contractual control on diversion.
[ ] Include lot coding and traceability obligations, which support both recall and diversion investigation.
[ ] Include audit rights over sales records.

Phase 11. Private label

[ ] Where manufacturing for a retailer's own brand, state who owns the formula.
[ ] [Gate] State whether the manufacturer may sell a similar product under its own brand.
- Trap. These deals routinely transfer more than the manufacturer intends, and the restriction is easier to negotiate before the first order than after the third.
[ ] State ownership of packaging artwork and specifications.
[ ] State what happens to formulas and specifications at the end of the arrangement.
[ ] State whether the retailer may move production elsewhere using the same specification.
[ ] Confirm which party bears regulatory responsibility for the label.
[ ] Confirm indemnity allocation for recall, misbranding, and product liability.
[ ] Confirm exclusivity terms are reciprocal and defined.
[ ] Confirm minimum volumes and the consequence of falling below them.

Phase 12. People

[ ] Confirm employee confidentiality agreements are in force and cover formula access.
[ ] Confirm consulting chefs executed a present-tense assignment and a confidentiality obligation before starting work.
- Why. Absent an assignment, the consulting chef owns the formula they developed.
[ ] Confirm recipe developers, product formulators, and outside kitchens are covered.
[ ] Confirm photographers assigned or licensed, with term, territory, and media recorded.
[ ] Confirm model and talent releases where people appear in campaign material.
[ ] Set realistic expectations on restrictive covenants, which are increasingly hard to enforce against kitchen staff. See Where an Employee Can Go.
[ ] Run exit procedures that produce a written acknowledgement of access.
[ ] For a chef whose name is on the business, address name use after departure in the employment or partnership agreement.

Phase 13. Label elements

[ ] Confirm the statement of identity under 21 C.F.R. § 101.3, including any applicable standard of identity.
[ ] Confirm net quantity, placement, and type size.
[ ] Confirm the ingredient list is in descending order of predominance.
[ ] Confirm allergen declaration is complete and correctly formatted.
[ ] Confirm nutrition information under 21 C.F.R. § 101.9, including serving size determination.
[ ] Confirm the name and place of business of the manufacturer, packer, or distributor.
[ ] Confirm country of origin marking where required.
[ ] Confirm the label as a whole would not render the food misbranded under 21 U.S.C. § 343.
[ ] Confirm bioengineered food disclosure where applicable. See bioengineered food disclosure standard.
[ ] [Gate] Re-run this full review after every reformulation, however minor.
- Trap. An ingredient substitution that changes predominance order or introduces an allergen, shipped on the old panel.

Phase 14. Claims and substantiation

[ ] Identify every claim on the label, the packaging, the website, the menu, and the advertising.
[ ] Classify each: nutrient content claim, health claim, structure-function claim, flavour designation, origin claim, or general marketing.
[ ] Confirm nutrient content claims meet the defined thresholds.
[ ] Confirm health claims are authorised.
[ ] Confirm structure-function claims carry any required disclaimer.
[ ] Confirm flavour designations comply with 21 C.F.R. § 101.22, including whether fruit imagery may accompany the name.
[ ] [Gate] Build a substantiation file before publication, with the basis for every factual claim and the underlying testing attached.
[ ] Scrutinise establishment claims, since a claim that tests prove something invites scrutiny of the tests.
[ ] Define an internal standard for "natural," "handcrafted," "artisanal," "small batch," and similar undefined terms, or do not use them.
- Why. These are enforced through consumer class actions rather than regulation, and they are the most litigated terms in the category.
[ ] Distinguish puffery from factual claims, and train the marketing team on the difference.
[ ] Check fill levels against container size for slack fill exposure.
[ ] Substantiate comparative claims before publishing and expect the competitor to test them.

Phase 15. Advertising and influencers

[ ] [Gate] Run label, packaging, website, and advertising through one review process against one substantiation standard.
- Why. POM Wonderful v. Coca-Cola means regulatory compliance on the panel is no defence to a competitor's false advertising claim under 15 U.S.C. § 1125.
[ ] Confirm campaign claims do not exceed what the label supports.
[ ] Confirm influencer briefs specify what may and may not be said.
[ ] Confirm disclosure obligations are met in influencer content. See Endorsements, Influencers, and the Law of Paid Praise.
[ ] Monitor published influencer content, because the brand is responsible for a creator's unsubstantiated claim.
[ ] Confirm menu descriptions are reviewed as claims — "locally sourced," "wild caught," "organic," and origin references are factual assertions.
[ ] Confirm testimonials reflect typical results or carry the required qualification.
[ ] Retain approved versions of campaign material, since campaigns drift from what was cleared.
[ ] Review outstanding claims quarterly against the substantiation file.

Phase 16. Franchise analysis

[ ] [Gate] Complete the analysis before the third location or the first licensing conversation.
- Why. Retroactive compliance is unavailable and rescission exposure runs from the original transaction.
[ ] Test the three elements: a trademark licence, significant control over or assistance to the licensee's method of operation, and a required payment.
[ ] Recognise that quality control required to avoid naked licensing frequently satisfies the control element.
- Trap. Believing there is a structure that avoids both naked licensing and franchise status. There is not — only structures that manage the balance.
[ ] Assess alternatives: company-owned expansion, management agreements, joint ventures with genuine shared control, exemptions, or full compliance.
[ ] Where a franchise exists, prepare a disclosure document, observe the waiting period, and register in the states that require it. See franchise rule disclosure requirements.
[ ] Assess state relationship laws restricting termination and non-renewal.
[ ] Apply the same analysis to ghost kitchens and virtual brand licensing.
[ ] For consulting arrangements, address name use after termination or the venue will keep trading on it.
[ ] For chef and celebrity name licences, address both the mark and the publicity right, with reversion and permitted-use controls. See When a Trademark License Becomes a Franchise.

Phase 17. Certification and origin

[ ] Where a group wants to protect a regional or quality designation, assess a certification mark under 15 U.S.C. § 1054.
[ ] Confirm the owner will not use the mark on its own goods, as certification requires.
[ ] Draft written standards and a certification process.
[ ] Maintain records and enforce consistently, since an unpoliced certification mark is vulnerable.
[ ] Consider a collective mark where members indicate membership rather than certification.
[ ] Check whether a geographic term can be registered as an ordinary mark at all under 15 U.S.C. § 1052.
[ ] [Gate] Check export markets for geographic indication conflicts before labelling.
- Why. A term generic in the United States may be protected abroad and block a market entirely. See Certification and Collective Marks.
[ ] Confirm origin claims on the label match the actual supply chain.

Phase 18. Digital and delivery

[ ] Confirm who may use the marks and images on delivery platform listings.
[ ] Confirm how listings are populated and what the platform may modify.
[ ] Confirm what happens to listings and reviews on delisting.
[ ] Claim and correct listings on review and mapping platforms.
[ ] For virtual brands, clear each name and confirm truthful representation of who is cooking.
[ ] Confirm photography licences cover platform listings and aggregators as separate uses. See The Image Business.
[ ] Confirm domains and social handles are registered in the entity's name and locked.
- Trap. Registration in a founder's or an agency's name, discovered when the relationship ends.
[ ] Obtain permission before reposting customer photographs, since a hashtag campaign's terms are weak unless genuinely presented.
[ ] Accept that negative reviews are not an intellectual property problem.

Phase 19. Enforcement triage

[ ] [Gate] Identify the actual claim before responding.
[ ] Confusingly similar name: trademark claim under 15 U.S.C. § 1114 or 15 U.S.C. § 1125, subject to geographic considerations for restaurant marks.
[ ] Copied room or packaging: trade dress claim, dependent entirely on the documentary record.
[ ] Same dish served elsewhere: no claim. Say so in the first conversation.
[ ] Former employee with the recipes: trade secret claim, strength dependent on whether reasonable measures existed.
- Trap. Pursuing this where formulas were wall-posted and taught to every hire. There is no secret to misappropriate.
[ ] Supplier producing for a competitor: contract claim on exclusivity and confidentiality, usually stronger than any intellectual property theory.
[ ] Counterfeit product bearing the mark: customs recordation, seizure, statutory damages, criminal referral where organised.
[ ] Diverted or grey market goods: exhaustion applies; the response runs through material differences and distributor contract controls.
[ ] Competitor's false claim: false advertising under 15 U.S.C. § 1125, with substantiation demanded first.
[ ] Negative reviews: not an intellectual property problem, and trademark claims against criticism fail publicly.
[ ] Record claims declined for lack of rights, because a healthy programme has a number there.

Phase 20. Cadence

[ ] Per product launch. Dual clearance; label review across four surfaces; substantiation file built; design patents filed before disclosure; intent-to-use application filed.
[ ] Per reformulation. Full label re-review including predominance order, allergens, and affected claims.
[ ] Per packaging refresh. Claims re-review; confirm constants survived; archive the outgoing generation; assess new design patent filings.
[ ] Per new supplier or co-packer. Agreement executed before any specification is sent.
[ ] Per new location. Photographs on opening; brand standards confirmed; trade dress file updated.
[ ] Per new market. Register clearance; geographic indication check; local labelling requirements; local filings.
[ ] Monthly. Marketplace and delivery platform monitoring; competitor claim watch.
[ ] Quarterly. Advertising claims reviewed against the substantiation file.
[ ] Annually. Trade secret audit across sites; mark renewals and declarations; trade dress file updated; supplier agreements reviewed; franchise exposure re-assessed.
[ ] On event. Licensing enquiry, third location, co-packer change, regulatory inquiry, competitor claim, or a departing employee with formula access.

Phase 21. If you can only do four things

[ ] Run register and label clearance together. One afternoon, and it prevents the most expensive avoidable failure in the category.
[ ] Put exclusivity and overrun terms in the co-packer agreement. It does more enforcement work than any registration.
[ ] Photograph the room at opening and keep the specifications. Free, and it is the difference between a trade dress claim and an assertion.
[ ] Compartmentalise the formula and supply a pre-mixed component. It converts an assumed secret into an actual one.

Phase 22. Metrics

[ ] Names cleared against both the register and the labelling regime before packaging is commissioned. Target one hundred per cent.
[ ] Marks filed on intent to use before public announcement.
[ ] Classes filed against classes the plan contemplates.
[ ] Locations photographed at opening.
[ ] Constant trade dress elements maintained across the last three refits.
[ ] Design patents filed on containers before disclosure.
[ ] Supplier and co-packer agreements containing confidentiality, exclusivity, and overrun terms.
[ ] Specifications sent before an agreement was executed. Target zero.
[ ] Uncontrolled formula copies found on audit. Target zero.
[ ] Advertising claims traceable to the substantiation file.
[ ] Reformulations followed by a full label re-review.
[ ] Claims declined for lack of rights.
[ ] The one that matters. Whether any launch was delayed or repackaged because a name failed label review after clearance. It is preventable in an afternoon, and recurrence means the two steps are still being run separately.

Outcome. The reformulation cost more than the packaging, which was the finding that changed the process. Dual clearance became a single step: register search and labelling analysis in the same afternoon, by the same reviewer, before any artwork was commissioned. Two subsequent launches were renamed at the concept stage at no cost. The co-packer agreement was rewritten with exclusivity defined by product characteristics, audit rights, and certified destruction of overruns, and the formula was restructured so the facility received a pre-mixed proprietary component rather than the composition. An annual secrecy audit found four wall-posted prep sheets in the first year and none in the third. The rooms were photographed at every opening from that point, the design specifications retained, and a brand standards manual written — which served the trade dress record and, two years later, the expansion. The franchise analysis was run before the third location rather than after the fourth, and the group chose management agreements. Nothing in that list was expensive. The one thing that had been expensive was the thing an afternoon would have prevented.

Phase 23. Scaling to the client

[ ] Single restaurant. Register the name; photograph the room and keep the specifications; confidentiality agreements people actually sign; an exclusivity clause in the supplier contract. Skip design patents, certification marks, and the franchise analysis until expansion is real.
[ ] Growing group. Add the franchise analysis before the third location; a brand standards manual serving both the trade dress record and the expansion; goods-class filings if packaged products are contemplated; a documented menu and marketing review.
[ ] Packaged goods brand. Add standing label and claims review across four surfaces; packaging trade dress documentation; design patents on containers; a substantiation file; co-packer terms with teeth; customs recordation once marks register.
[ ] Multi-brand group. Centralise clearance, label review, and the substantiation library; maintain one supplier template with confidentiality and exclusivity pre-drafted; run an annual secrecy audit across sites.
[ ] Producer association. The certification mark route with written standards, a process, records, consistent enforcement, and export market checks.
[ ] Consulting chef or personal brand. Register the name; licence it with defined scope and reversion; never let a venue keep using it after termination.
[ ] [Gate] Confirm the programme matches the client's actual scale, because running a packaged-goods programme for a single restaurant wastes the budget and running a restaurant programme for a national brand leaves the exposure uncovered.

Phase 25. The one-page brand record

Brand — [name], [entity], [category]. Marks: word mark filed [date, basis, classes], registered [number]; logo [status]; secondary marks [list]; incontestability [claimed date]; declarations due [date]; watch service [active from]. Clearance: register search [date]; common law search [date]; labelling analysis [date, conclusion]; standard of identity issue [none / description]; flavour designation issue [none / description]; origin implication [none / description]; alcohol label approval [n/a / date]; export geographic indication conflicts [none / markets]. Trade dress: photographed at opening [date] and refits [dates]; design specifications retained [yes/no]; brand standards manual [version, date]; constant elements [list]; functionality assessment [date]; press and advertising file [items]. Packaging: generations archived [N, dates]; design patents [numbers, filed before disclosure yes/no]; registered elements [list]; lookalikes identified [N]. Trade secret: identified secrets [list]; compartmentalisation [description]; pre-mixed central supply [yes/no]; written copies [numbered/tracked]; confidentiality agreements in force [employees N, contractors N, suppliers N]; exit acknowledgements [N of N]; last audit [date, findings]. Co-packers: [list]; confidentiality [in force]; no-similar-products term [present/absent]; audit rights [present/absent]; overrun destruction certified [yes/no]; tooling ownership [description]; specification sent after execution [confirmed]. Distributors: territories [list]; exclusivity [terms]; mark use [scope]; out-of-territory restriction [present/absent]; lot coding [required]. Private label: [n/a / retailer]; formula ownership [description]; manufacturer's own-brand restriction [present/absent]. Label: last full review [date]; reformulations since [N, each re-reviewed yes/no]; panel elements verified [list]. Claims: surfaces reviewed [label / packaging / website / menu / advertising]; substantiation file [location]; undefined terms used [list, internal standard yes/no]; comparative claims [N, substantiated]; influencer briefs issued [yes/no]. Franchise: analysis [date]; conclusion [not a franchise / compliant / exposure]; structures [company-owned / management / joint venture / licence]; disclosure document [n/a / version]; state registrations [list]. Digital: platform listings controlled [yes/no]; photography licences [term/territory/media]; domains and handles in entity name [confirmed]; virtual brands [N, cleared]. Enforcement: matters this year [N]; basis for each [mark / trade dress / trade secret / contract / false advertising]; claims declined for lack of rights [N]; customs recordation [marks]. Outstanding actions: [list].

Phase 26. Working with other advisers

[ ] Regulatory counsel. Engaged for label review, standards of identity, and any claim requiring authorisation. Brief them with the formula, the panel, and the campaign together.
[ ] Food scientists. Consulted on reformulation consequences for the panel and on substantiation testing.
[ ] Design and packaging agencies. Briefed on which elements must remain constant across refreshes, and told that artwork cannot be commissioned before dual clearance clears.
[ ] Supply chain. Involved in the secrecy design, because compartmentalisation and pre-mixed central supply are operational decisions rather than legal ones.
[ ] Franchise counsel. Engaged before the first licensing conversation, not after the fourth location.
[ ] Foreign counsel. Engaged for export market clearance, geographic indication conflicts, and local labelling requirements.
[ ] Insurance brokers. Consulted on product liability, recall, and advertising injury coverage, and on whether the last has been excluded.
[ ] [Gate] Confirm one person owns the launch checklist end to end, because the recurring failures in this category are handoff failures between clearance, regulatory, and marketing.

Phase 24. What this costs

[ ] Dual clearance takes an afternoon and prevents the most expensive avoidable failure in the category.
[ ] Photographs and design specifications cost nothing and are the entire trade dress record.
[ ] A brand standards manual takes a week and serves three purposes.
[ ] Design patents on containers are modest and require no secondary meaning.
[ ] Compartmentalising the formula is a supply chain decision with no legal cost.
[ ] Co-packer terms cost a negotiation and prevent a competitor's product from your own facility.
[ ] A substantiation file costs the discipline of building it before publication rather than after a demand.
[ ] The franchise analysis takes an afternoon and prevents rescission exposure running from the first licence.
[ ] The asymmetry. Every item above is cheap at its moment. The expensive events — a forced reformulation, a rescission claim, a competing product from your co-packer, a campaign withdrawn — are each the consequence of skipping one of them.

Key Authorities at a Glance

| Authority | Proposition | |---|---| | 17 U.S.C. § 102 | Procedures and facts excluded | | 17 U.S.C. § 103 | Compilations | | 18 U.S.C. § 1836 | Trade secret civil action | | 15 U.S.C. § 1051 | Intent-to-use applications | | 15 U.S.C. § 1052 | Descriptiveness; geographic terms; surnames | | 15 U.S.C. § 1054 | Certification and collective marks | | 15 U.S.C. § 1058 | Declarations of use | | 15 U.S.C. § 1064 | Cancellation | | 15 U.S.C. § 1065 | Incontestability | | 15 U.S.C. § 1114 | Infringement | | 15 U.S.C. § 1125 | Trade dress; false advertising | | 21 U.S.C. § 321 | Definitions | | 21 U.S.C. § 343 | Misbranded food | | 21 C.F.R. § 101.3 | Statement of identity | | 21 C.F.R. § 101.9 | Nutrition labelling | | 21 C.F.R. § 101.22 | Flavour designations | | 35 U.S.C. § 171 | Design patents | | 35 U.S.C. § 173 | Design patent term | | Publications International v. Meredith | Recipes not copyrightable | | Two Pesos v. Taco Cabana | Restaurant trade dress | | Wal-Mart Stores v. Samara Brothers | Product design needs secondary meaning | | TrafFix Devices v. Marketing Displays | Functionality | | Qualitex v. Jacobson Products | Colour as a mark | | POM Wonderful v. Coca-Cola | Lanham Act runs alongside food regulation | | Jack Daniel's Properties v. VIP Products | Source use limits the defence | | Franchise rule disclosure requirements | Disclosure obligations |

The five things people get wrong

One. They clear the mark and not the label. The name passes the register, packaging is printed, and label review finds it implies a standard of identity or an ingredient proportion the product cannot meet. The two searches take the same afternoon and must happen together.

Two. They believe the recipe is protected. 17 U.S.C. § 102 excludes procedures and facts, and Publications International v. Meredith confirmed it for recipes. The belief diverts attention from the four things that are protectable.

Three. They believe the formula is a secret. It is not, if it is pinned to a prep station wall, taught to every new hire, and never marked. Reasonable measures under 18 U.S.C. § 1836 are the whole of the doctrine, and compartmentalisation with central pre-mixed supply is worth more than any agreement.

Four. They send specifications to a co-packer without an exclusivity term. Confidentiality alone does not stop a facility developing a similar product for someone else, and eighteen months later there is nothing to enforce.

Five. They split label review from marketing review. POM Wonderful v. Coca-Cola means a compliant panel is no answer to a competitor's false advertising claim about the campaign. One process, four surfaces, one substantiation standard.