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Food and beverage law bulletin 2025

A roundup of recent trade mark trends

By Natasha Burns, Ye Rin Yoo

Key takeaways

  • Trade mark searches will be relevant in examination: trade mark searches are an essential part of a brand protection strategy. Search results are a key component of responding to adverse examination reports when relying on provisions of honest concurrent use.
  • Distinguish between clearing a trade mark for use and registration: even though goods and services may not be considered similar by IP Australia, the courts have shown a different approach. When clearing a trade mark for use, trade mark searches need to focus on the ordinary meaning of the goods and services, and not on the classes.
  • Protect distinctive visual cues: protecting distinctive visual cues, such as colour and label designs, will be important for protecting functional trade marks that are descriptive of an attribute of the product. Protection of these visual cues also assists trade mark owners when taking action against a growing range of dupe or look-alike products.

Trade mark filing trends in Australia

IP Australia's Australian IP Report 2025 shows that over half of trade mark applications filed in Australia come from local businesses, with food and beverage businesses being among the top filers.1 This reflects the significance of trade marks and strong competition in that sector.

The filings for food and beverage goods have remained steady over time, which indicates the consistent role of trade marks in that sector. However, the types of food and beverage goods specified have changed, reflecting trends among consumers and in the market. For example, the recent rise in the popularity of low alcohol beverages is reflected in the strong 2017 increase in filings for goods in the alcoholic beverages class (class 33) that include the word 'low', and such goods have remained a substantial proportion (around a fifth) of class 33 filings since that year.

Australian examination trends

We have seen a number of trends in the examination of trade marks before IP Australia that will have a significant impact on food and beverage sector brands.

Specifications

The recent decision by the Full Federal Court in Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44 has highlighted the importance of identifying the scope of a trade mark by the description of the goods in the specification, and not by the class number. The court held that 'non-alcoholic beverages' in class 32 would be considered similar to 'coffee' in class 30. This diverges from the practice of the Australian Trade Marks Office (ATMO), which has confirmed that it will not adopt the court's approach from Energy Beverages, and does not consider goods in class 32 to be similar to goods in class 30.

For the food and beverage sector, there are important lessons from the Energy Beverages case when it comes to preparing specifications:

  • When clearing a trade mark for use, trade mark searches should focus on the goods and not the classes, and have a broader perspective on the assessment of similar goods. For example, when you consider the word 'coffee', it could cover beverages, even though 'coffee' is classified in class 30, which is a food category.
  • When applying to register a trade mark, the trade mark application should include a description of goods that contains both specific and, if appropriate, broad terms. The court will assess specifications by their ordinary meanings and not with regard to the classes.

Descriptive trade marks

The functional drink market is projected to grow from $175.5 billion in 2022 to $339.6 billion by 2030.2 We see both traditional beverage businesses and new players entering that market, with non-alcoholic wine and beer; drinks containing gut-healthy ingredients, such as prebiotics and probiotics; and athletic performance and recovery beverages. In that growing industry, businesses often try to allude to the functional feature in their branding.

It is difficult to register functional brands as trade marks because such trade marks are considered to lack distinctiveness in respect of goods and services for registration.3 We are seeing a stricter application of the distinctive requirement by Examiners at IP Australia.

To overcome distinctiveness objections, a strategic approach is needed:

  • A trade mark may be objected to under s41(3), on the basis that it has no capacity to distinguish; or under s41(4), on the basis that it has some, but insufficient, capacity to distinguish the goods or services.
  • In both cases, the applicant may submit evidence of use, to show that it has used the trade mark in the Australian marketplace to such an extent that the trade mark has acquired sufficient distinctiveness in respect of the goods or services through use. Under s41(3), the evidence must predate the filing date. Under s41(4), the evidence should predate the filing date, but can also include post-filing-date evidence, and evidence of intended future use.

When addressing a s41(3) objection with limited evidence of use before the filing date, a possible strategy is to argue that the trade mark does have some capacity to distinguish the goods or services, so as to change the objection to one under s41(4). This would allow the applicant to take advantage of extensions of time and divisional applications, and gather more post-filing-date evidence of use, to overcome the objection.

Businesses looking to use more descriptive marks as brand names can protect key branding cues through non-traditional trade marks, as a way to protect other aspects of their branding and secure a wider monopoly.

Brand expansion and retro brands

Although many trade mark owners have established processes for mitigating the risks when launching new brands by conducting clearance searches and using the Trade Mark Headstart procedure, unexpected problems can arise when they look to expand their range of products under an existing brand, or revive a retro or nostalgic brand.

A well-established brand may find that there are obstacles to expanding the range of goods or services under their existing brand name.4 When such obstacles arise, the trade mark owner may seek to rely on the provisions of honest concurrent use, to overcome an objection raised by IP Australia based on a prior trade mark or to raise a defence to a trade mark infringement claim. The honesty of the applicant's use is paramount in those cases. Although an established brand may believe that its expanded use has been honest, given its long history with the trade mark, recent decisions by the ATMO suggest that more is required to prove that honesty.5

LESSON: The applicant will need to establish that due diligence steps have been taken to clear the trade mark in the new category of goods or services—and those would usually be clearance searches for the new goods or services, or legal advice.

Trade marks that have not been used for three years or more are vulnerable to removal for non-use.6 Protecting retro and nostalgic brands from removal for non-use is becoming more difficult. Although the Registrar has discretion to allow a trade mark to remain on the register even if it has not been used for three years, the discretion is rarely exercised.

LESSON: The key takeaway for owners of retro and nostalgic brands is to keep the brand 'alive' through channels such as websites and social media 'fan' pages, even if the product is no longer on the market.

Global trends

Litigation trends

Australia, and the rest of the world, continues to see a rise in trade mark owners taking legal action against look-alike products.

For example, in December 2024, the Federal Court found Aldi had flagrantly breached copyright in its packaging for Mamia Baby Puffs, copying the packaging of Sydney-based Little Bellies, a children’s snack food brand owned by Hampden Holdings.7

The United Kingdom (UK) and the United States (US) has seen similar litigation against dupe products in the food and beverage and general retail markets, especially against the budget grocery chains of Aldi and Costco.

Source: Aldi accused of ripping off Aussie snack brand

US

The year 2024 marked a return to growth for trade mark filings in the US after a period of decline, with most of that growth originating from Chinese applicants. However, other Asian brands are increasingly targeting US consumers, with notable increased activity from applicants in Hong Kong and South Korea. Australian applicants also continue to show strong growth in filing US trade marks.

One trend we are seeing in the food and beverage sector in the US is brand collaborations. These include:

  • Pringles x Crocs;
  • Nails.INC x McDonald's;
  • Heinz x Fauchon; and
  • KFC's 'Lickable Wrapping Paper'.

China

Although Chinese applicants are filing a large number of trade marks applications in foreign countries, primarily driven by online e-commerce platforms, filing activity in China has decreased. Despite the decline, the China trade mark register remains the most active in the world, receiving around 7 million trade mark applications in 2024. China National Intellectual Property Administration receives more applications in one month than the United States Patent and Trademark Office receives in one year. However, the global tariff war and the removal of the de minimis rule, which allows shipments with a retail value under US$800 to avoid tariffs, will likely dampen activity in China.

UK

The UK is one of the fastest-growing trade mark registers, averaging 12% annual growth. Regarding the food and beverage sector, we have seen similar trends to Australia's—an increase in filings for low and alcohol-free alternatives, especially premade cocktails and wine, flavoured waters, gluten-free items and plant-based foods.

These innovations in the food and beverage sector have major ramifications for trade mark protection. For plant-based food products, it is important to avoid words and imagery associated with the animal products, such as milk for plant-based mylks. The UK and EU also have strong protections for geographical indications (GIs); GI-protected terms such as 'whisky', 'tequila' and 'port' should not be included in specifications. As in Australia, there has also been an increase in protecting the non-traditional aspects of branding, such as packaging/bottles, and the positioning of trade marks on those products, as trade mark owners take a proactive approach to protecting the strong visual cues of their branding against dupes or look-alikes.  

What's next?

Food and beverage businesses continue to own some of the largest trade mark portfolios in Australia, with Coles, Nestle, Endeavour Group and Aldi in the top ten. Not only are trade marks a key asset, but the trade mark landscape is constantly evolving, as food and beverage businesses are both innovative and responsive to key consumer trends. Trends in health and natural-focused foods, sustainable alternatives, and use of native ingredients and local sourcing, all reflect broader consumer trends towards wellness, environmental sustainability and authenticity.

While 2025 has seen a decrease in the number of trade mark applications being filed in the food and beverage classes reflecting general economic conditions, overall this segment remains strong. As we move toward 2026 we expect to continue to see the market protecting aspects of packaging and colour to counteract increasing counterfeit, dupe and lookalike products.

Footnotes

  1. Australian Intellectual Property Report 2025, IP Australia.  

  2. J Cording, 'The Rise of Functional Beverages Among Millenials and Gen Z', Forbes online, 13 April 2025: The Rise Of Functional Beverages Among Millennials And Gen Z  

  3. Trade Marks Act 1995 (Cth), s41.

  4. Trade Marks Act 1995 (Cth), s44.  

  5. White International Pty Ltd v Whites Powersports Australia Pty Ltd [2025] ATMO 157 (11 August 2025).  

  6. Trade Marks Act 1995 (Cth), s92.  

  7. Hampden Holdings I.P. Pty Ltd v Aldi Foods Pty Ltd [2024] FCA 1452, and see also the UK Court of Appeal decision finding, in Thatchers Cider Company Limited v Aldi Stores Limited [2025] EWCA Civ 5, that Aldi had deliberately copied Thatcher's 'Cloudy Lemon Cider' packaging.