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INsight
SUSTA's INsight newsletter is published quarterly.

Fall 2011 INsight excerpts

Legal Alert: Is My Branding Strategy a Ticking Bomb?
Sneak Peek into 2012 Generic Activities
Branded Travel Reimbursements: What You Really Need to Know
Texas Company Uses MAP to Heat Up European Markets
New Rules for Energy Drinks in Canada

Spring 2011 INsight excerpts

Summer 2011 INsight excerpts

Legal Alert: Is My Branding Strategy a Ticking Bomb?

What’s in a name? Everything! Just as our names identify and distinguish us from other persons, your “brand” and other specific product or service identifiers assure customers that they are buying the genuine product or service. Thus, the most valuable assets of your business may be its trademarks (for products) or service marks (for services).

Beware: Failure to understand and adhere to legal requirements may cause you to lose your rights or incur substantial liability to others.

Choose wisely: Strength of rights and cost of acquisition and enforcement of a mark are largely determined by the mark itself, and savvy trademark counsel can prove invaluable at all stages. For instance, “arbitrary” marks using common words that are meaningless for your goods and “fanciful” marks (meaningless words you create) are the strongest. Maximum enforceability and cost-effectiveness can be achieved through cunning strategies, such as prioritizing registration of “core elements” of the brand vs. the common approach of registering only the entire stylized logo, which exposes core elements to copying without protection. Likewise, strategic drafting of the description of goods or services that you claim are covered by the mark must balance the benefit of breadth vs. vulnerability to challenges.

Should you register your trademarks? The short answer: in my opinion, you cannot afford not to register in countries in which you sell products or services.

While some countries (U.S.) recognize unregistered “common law” trademark rights upon actual use of a mark, the protection afforded is illusory in most cases because the protection extends to the first user of the mark for the specific products or services in the limited geographic area in which actual and continuous use can be proven, facts which are expensive and difficult to prove in litigation. Conversely, national registration establishes prima facie nationwide ownership of the mark for specified goods or services and offers remedies which can include attorneys’ fees and special damages awards. Thus, a competitor is more likely to voluntarily comply with a cease and desist demand based on a registered mark than to spend valuable resources fighting your demand that infringing conduct cease.

In addition, imports that infringe registered trademarks may be seized by border officials (prior recordation may be required, like the U.S.), while alternative remedies for which common law marks also qualify can be prohibitively expensive.

Foreign filing options are generally a national application via local counsel vs. a “Madrid” treaty filing through the applicant’s home country designating specific participating foreign markets. The significant pros and cons of each are beyond this article.

Is it expensive? It doesn’t have to be. Working closely with the right trademark attorney can greatly decrease the cost of registration and protection of the trademark in the years to come, and will prove much less expensive than infringement exposure requiring you to stop using the mark, change your product labels and other materials, and perhaps pay damages and/or attorneys’ fees.

Plan ahead: Two important timing considerations must be understood: (1) it may take many months for registration to issue (in the U.S., approximately 12 months, even if no problems arise); and (2) if actual use is required before registration, filing an “intent to use” application allows the initial stages of the process to proceed, thus decreasing the time before registration issues after actual use begins and placing your application in front of subsequent filings. Many foreign markets will issue registrations without actual use of the mark, increasing opportunities for early protection but also the risk of a prior registration by competitors or brand pirates.

Proper use of ® and ™ symbols is vitally important. In some countries, ® identifies a registered mark and must be displayed in order to entitle the registrant to damages for infringement, but can cause loss of rights and liability if used with a mark not registered or with goods or services not within the registration. In contrast, ™ gives notice of common law claims to a mark. Know and comply with national requirements.

Remember, if you fail to plan, you plan to fail.

~By John M. Huddle, Esq., CEO & Attorney at Law, The Global Law Group, PLC. Mr. Huddle has represented U.S. and foreign companies in global trademark, export/import, and business compliance matters for nearly 30 years. He speaks frequently on these topics in the U.S. and abroad, and holds a number of leadership positions in the global trade and legal community. Mr. Huddle can be reached for questions at jhuddle@TheGlobalLawGroup.com.

Sneak Peek into 2012 Generic Activities

Every year, SUSTA strives to bring southern U.S. companies to more markets and provide more opportunities to promote your products. 2012 is quickly approaching and we know that you are already thinking about some trade shows and expos. The full list of 2012 shows and missions are being finalized, but here is a sneak peek at what we have planned:
IPM
Gulfood
Foodex
ANTAD
SIAL China
SIAL Mercosur
SIAL Canada
SIAL Paris
SIAL Middle East
European Seafood Expo
Food & Hotel Korea
Food Arabia
Fine Food New Zealand
Food Taipei
Summer Fancy Food Show
Annapoorna
Fine Food Australia
World Food Moscow
World Food Kazakhstan
Asian Seafood Expo
Hong Kong Wine Fair
Private Label Manufacturers Association Show
Fruit Logistica
Food and Hotel China
Food and Hotel Vietnam
Food and Hotel Asia

Activities are subject to change. Please check the SUSTA website often for the latest updates, with more activities and details on how you can get on board for these cost-effective promotions.

And don’t forget – Branded funds can be used to lower your costs for travel to exhibit at shows, freight for shipping samples, and other promotional activities not offered with our Generic events. Contact SUSTA at branded@susta.org or visit our website at www.susta.org/services/map.html to learn how you can get 50% of your international marketing money back!

Branded Travel Reimbursements: What You Really Need to Know

Some of the most important expenses companies ask to be reimbursed under the MAP Branded program are travel to international shows and missions. But it’s easy to get confused about whether your travel qualifies for reimbursement, with so many options for booking airline tickets and hotels. Use the tips below to make sure that you can get 50% of your costs back next time you travel for international promotions.

“I used a travel site to book my international flight and now my travel is ineligible.” Travel sites like Kayak, Expedia and Priceline are becoming increasingly popular. The sites shop the best price for you and may save you a couple hundred dollars, but beware! A travel site is looking to save you money no matter what kind of combination of carriers they use. For your airfare to be eligible, you must fly on a U.S. carrier. When a U.S. carrier cannot reach the final destination for your trip, the proof of payment must lead back to a U.S. carrier, even if the last portion of the trip was on a foreign airline. Several U.S. airlines have formed partnerships with foreign carriers. Please be certain the airline coding on your itinerary is for a U.S. carrier and the ticket is purchased from a U.S. carrier. It may not be worth saving a couple of dollars on the initial purchase when you could be getting 50% back.

“Should I use points to cut the cost of my airline ticket?” The Branded program will only reimburse companies for a fully paid coach/economy class ticket. If you want to use points to upgrade your ticket to business or first class, you will need to submit a quotation of the coach/economy class fare. The quote must be obtained on the same date the business or first class ticket was purchased, not after the trip takes place.

“I am going to fly to a meeting the day before the show and will continue directly from there. Does that still qualify?” We know that your business takes you many places. While it is simpler to reimburse you for a direct flight to and from the approved trade show/trade mission destination, it is possible to make sure your ticket is reimbursable even if you have other travel plans. If you need to fly to other non-trade show-related destinations or extend the trip before or after the show, a quote must be obtained showing the cost of coach/economy class fare directly to and from the trade show. Again, the quote must be obtained on the same date the ticket was purchased, and not after the trip takes place.

“Anything else I should know before I travel?” When submitting expenses, remember that you are eligible for per diem for two days before the show and one day after the show. Also, be sure to take several photos of the booth at the trade show or tabletop display, with your “Made in the USA” sign showing!

And the most important tip – if you have any questions or are unsure about procedures, please contact the Branded department at 504-568-5986 before you book your travel! We’re here to help you, and want our companies to get the most out of the Branded program.

Texas Company Uses MAP to Heat Up European Markets

Doug Renfro of Renfro Foods knows that patience and selecting the right partners can pay dividends for exporters. Eight years ago, Renfro Foods exhibited at the IFE London show but found that the U.K. market was not ready for their specialty salsa. However, the company decided to use Market Access Program (MAP) Branded funds to return to the show, and found that the response at the March 2011 IFE was quite different. “Visitors were coming by asking if this was the hottest flavor we had,” said Renfro.

Renfro Foods started working with a U.K. distributor last year but had only had one order prior to IFE. Since the show, however, the distributor has re-ordered twice, equating to $12,000 in new export sales for the company in less than a year. The popular Selfridges chain has picked up their products, and the distributor has gotten Renfro Foods into Finland and Sweden as well. “It’s really nice after a few years of false starts to have some continued interest and success,” said Renfro.

New Rules for Energy Drinks in Canada

The boom of the energy drink industry has left some countries scrambling to figure out how to keep their consumers well informed. The Canadian government recently announced plans to take a new approach to regulating caffeinated energy drinks. Health Canada announced new guidelines and ways to provide more information after such products moved from the Natural Health Product classification and required the same regulation as food products. Classifying energy drinks as food is consistent with the practices of Canada’s other major trading partners, including the United States.

Because energy drinks can contain a wide variety of ingredients including vitamins, minerals, sugar and, of course, caffeine, the new regulations will include:

• The amount of caffeine that can be included in a single serving (180 mg, equal to a medium cup of coffee)
• Labeling that will identify the product as a high source of caffeine
• Ingredient, nutrition and allergen labeling
• A statement indicating it is not recommended for children or pregnant and breastfeeding women
• A statement that discourages the use of the drink mixed with alcohol

In addition, Health Canada will prohibit any premixed alcoholic beverages with caffeinated energy drinks and will be researching and monitoring the long-term health effects the drinks may have. Canada also plans to introduce additional measures to moderate potential risks associated with the over-consumption of these products. Additional formulation and labeling requirements are being considered, as well as consumer education efforts.

For more information about requirements for energy drinks and other food products in Canada, visit www.hc-sc.gc.ca, or look for free reports on the Canadian market for U.S. food products on the Foreign Agricultural Service website, www.fas.usda.gov.

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