Sealord Group Ltd
Intellectual property issues
The following questions were put to prosthetics developer Sealord Group Legal Adviser Victoria Reid in late 2007 by Susan Corbett, of Victoria University of Wellington, as part of her study, Intellectual property in Technology teaching, identifying intellectual property implications and issues that emerge from selected Techlink case studies. Their replies take the form of edited reported speech.
- Sealord Group Ltd currently has around 16 trade marks registered at the Intellectual Property Office of New Zealand (www.iponz.govt.nz ). Sealord is a global business and has subsidiary ventures in the United States of America, Europe, Asia, Australia and South America. The name Sealord is protected in most if not all of the markets in which Sealord products are sold.
- Once a new food product is out in the marketplace it is difficult to prevent it from being copied by other companies. There is no law that would prevent a competitor from analysing the contents of a Sealord product and reproducing it (unless a part of the process is novel and shows an inventive step – in which case it could be patented). Are Sealord's main marketing strategies to build up customer confidence in its brand reputation and to keep ahead of its competitors?
- During the development and testing stages of a new product e.g. crumbed scallops, it is essential that competitors do not learn about the proposed new product. Are all Sealord employees bound by confidentiality agreements?
- The actual person, who created the plans and outlines for the packaging, is the author. The plans and outlines are considered to be artistic works and will be protected by copyright. However Sealord will own the copyright by virtue of its contract with the author, regardless of whether the author is an employee of Sealord or a contractor, or the employee of an agency working for Sealord.
Does Sealord keep dated records of all plans and outlines as evidence that the company owns copyright in the final packaging?Sealord retains dated archives of its designs and plans for packaging. If necessary, these documents can be produced as evidence (for copyright purposes) to establish that Sealord owns the copyright.
- What arrangements are made with the graphic artists regarding the ownership of copyright in their graphic designs for the Sealord packaging?
It is possible to register a trade mark in all 27 countries of the European Union. This is achieved by registering a Community Trade Mark which can be done online at http://oami.europa.eu/en/mark/marque/efentry.htm. However, at Sealord this task would be outsourced to a firm of specialist intellectual property (IP) lawyers.
Victoria confirms that Sealord is always looking to improve its processing techniques, and may on occasion consider protecting a novel process either by patenting it or through using confidentiality agreements. On the whole, Sealord relies on other strategies, depending upon which part of its business is being considered. Sealord's business could be divided into two parts, each of which requires a different approach to marketing and IP protection.
A large part of Sealord's business is concerned with the onward sale of high-quality fish and fish products, caught in New Zealand waters using Sealord fishing quota and Sealord fishing boats. Product which is surplus to its own requirements is sold to other businesses and even to Sealord's own competitors. IP protection is not an important part of this part of the business, which is more about building up business relationships of trust and confidence. Sealord's business customers rely on Sealord's reputation for reliability and its quality products.
The other part of Sealord's business is the development of frozen fish meals, such as the crumbed scallops in this case study, for retail sale in supermarkets in New Zealand and overseas. For this part of the business the marketing strategy is very much related to building up a brand (or trade mark) reputation in customers' minds. In practice, this is achieved by ensuring its branded food products are recognised and demanded by retail customers for their quality, taste, and appropriate pricing.
All Sealord employees are bound by an implied duty of confidentiality, which is owed to their employer. For this reason it is only occasionally that Sealord will ask its employees to sign a further, more specific, confidentiality agreement. This might occur, for instance, if the employee was working on a new product or process, joint venture, or project, which was thought to be very sensitive in a commercial sense.
Outside contractors, such as scientists who are not Sealord employees but are contracted to provide specific research on a particular project, will be asked to sign a confidentiality agreement.
How important is it that the Sealord Group brand is represented by the new packaging? In other words, is there scope for totally new and innovative packaging or must it follow the same theme as that for other Sealord Group products?
Sealord will always look at ways to improve the efficacy of its packaging; however, the 'look' of the packaging does follow a theme. The theme requires a consistent colour scheme, font, and layout, of pictures and words on the packaging.
Together with the registered trade mark the themed packaging ensures that customers can quickly recognise Sealord products, against a backdrop of its competitors, in a supermarket setting. The designs and photographs on the packaging are automatically protected by copyright provided they are original, as they are considered to be artistic works in copyright law.
Occasionally a competitor will produce its own food product in packaging that is carefully designed to look very similar to Sealord's products. The competitor is trying to confuse customers into buying their product in the belief it is made by Sealord.
In law this behaviour is called 'passing off' and can be stopped because it is unfair to the company whose products are being copied, and also to the consumer who is being mislead. It is also grounds for an action for copyright infringement, and sometimes also for trade mark infringement if the competitor is using an identical trade mark to that of the trade mark owner or one that is so similar to the trade mark it is likely to confuse customers.
When this happens, Sealord will send a warning letter to the infringing competitor; in the past this has been sufficient to ensure that the offending stops.
Sealord usually requires that contracts with graphic artists confirm that Sealord will own the copyright in all designs created for it.
This would be the case under New Zealand copyright legislation even without the signed agreement, provided the graphic works have been commissioned by Sealord for payment. Note that the term of the copyright will always be related to the author, which is the lifetime of the graphic artist plus a further 50 years.
