The no/low beverage sector is thriving. In 2023, data from the IWSR found that UK no/low alcohol sales grew by 17%, marking 15% year-on-year growth. Alongside this, data from YouGov found that 38% of UK adults now regularly purchase no/low alcohol beverages.
While this booming market holds significant opportunities for drinks manufacturers as consumers increasingly reach for alcohol-free, producers must also be mindful of the legalities.
Recent case law highlights the complex intellectual property challenges which manufacturers may face when branding alternatives to alcoholic beverages – some of which enjoy unique legal protections. For example, port and champagne are protected designations of origin (PDOs) as their names refer to the specific geographical regions where they are produced. There are then restrictions on when these or similar names can be used by others.
The landmark ruling by the EU Intellectual Property Office’s Fifth Board of Appeal, in respect of the trademark ‘PriSecco’, registered for non-alcoholic cocktails, has established important precedent for the industry. The case underscores how closely PDO regulations are being enforced, even for products that technically fall outside the traditional wine category. The ruling found that ‘PriSecco’ constituted an ‘evocation’ of the ‘prosecco’ PDO, as it was likely to trigger thoughts of Prosecco products in the minds of consumers. This ultimately led to the trade mark’s registration being invalidated.
Understanding PDO boundaries
PDOs are not exclusive to alcoholic beverages but are particularly prominent in the wine sector. Key protected wines include champagne, prosecco, port and numerous other regional varieties. Protection extends beyond identical products and, as seen in the PriSecco case, that protection can be relied on to challenge a trade mark registration where there is a ‘notable proximity’ between the marks.
However, for manufacturers, the critical legal considerations extend beyond simple name similarity. EU and UK regulatory frameworks focus on protecting against:
Risk mitigation strategies
- Brand name proximity to protected terms
- Visual presentation and packaging similarities between products
- Misleading marketing language, suggesting association with protected products
- Exploitation of reputation
- False or misleading geographical indications
- Misleading claims about production methods or product origin
Drinks manufacturers can implement a variety of strategies to develop successful no/low alternatives while minimising legal exposure, such as creating entirely distinct and original brand names that avoid any phonetic, visual or conceptual similarity to protected terms. The safest approach is to develop unique identifiers rather than attempting to modify or play on existing protected names. For example, rather than using variations of champagne, companies can coin entirely new words or use their inventor’s name as their brand – like the brand Shloer has done for its sparkling fruit drink. Companies should also keep in mind that their brand names should avoid being descriptive, as this can be a barrier to trade mark registration.
Manufacturers should exercise caution when referencing wine-producing regions, even in descriptive or comparative contexts. Any suggestion of geographic association with protected wine regions could trigger legal challenges, particularly if the product itself is manufactured elsewhere.
It’s also vital for drinks manufacturers to ensure their marketing and advertising materials are not misleading; they should explicitly position products as alternatives rather than variations of protected wines. Careful consideration should be given before using accompanying terms like type, style, or method, as these may not be sufficient to avoid imitation or evocation of PDOs.
As the no/low alcohol sector continues to grow, manufacturers should anticipate increased scrutiny of their branding and marketing approaches. The PriSecco case demonstrates that manufacturing non-alcoholic products, does not absolve manufacturers from having to comply with regulations set out to protect alcoholic products like wines.
Legal compliance
To ensure compliance and minimise legal risks in their branding, drinks manufacturers should:
Market opportunity within legal bounds
- Conduct comprehensive trademark and PDO searches before brand launch
- Seek early legal advice on brand strategy, advertising and marketing approaches
- Document the independent development of branding elements
- Maintain clear differentiation from protected products in all marketing materials
- Regularly review marketing materials for compliance as regulations evolve
Despite these constraints, significant opportunities exist in the alternative no/low alcohol market. Success lies in viewing legal requirements not as limitations, but as frameworks for innovation. Manufacturers who develop truly distinctive products and brands, rather than attempting to closely mirror protected wines, can find themselves on a path to long-term success.
The growing consumer demand for no/low alcohol alternatives provides significant opportunity for creative branding approaches that respect intellectual property (and other) rights while meeting market needs. By prioritising legal compliance in the early stages of product development, manufacturers can avoid costly rebranding exercises and legal challenges while building sustainable, distinctive brands in this expanding market sector.
Looking ahead, manufacturers should anticipate that PDO enforcement might become even more stringent as traditional wine producers seek to protect their heritage and market position. Early investment in compliant branding and marketing strategies will prove invaluable as the market continues to evolve and regulatory scrutiny increases.
