Trademarks are our ultimate lifeline

A few times a month, Danny Schuwer drives about 175 km to his work at Brinkers in Enschede. Here he is one of the three directors, together with Joa and Bernard Brinkers, brother and sister from the fourth generation now heading the family business. At the time of the interview, Schuwer is mainly focusing on preparations for the Anuga, the world’s biggest food fair which starts a week later in Cologne in Germany. He and nine colleagues will spend a week there. Schuwer is really looking forward to it. "I’ve been going to that fair for at least forty years, and it’s always a lot of fun as well as exciting to be there. My younger colleagues now do most of the work – they keep me on my toes and enthusiastic. It’s the perfect opportunity to bond with clients, importers and suppliers, who are often entrepreneurs like us. I’ve known some of them for many years and I consider them friends. That makes it a really enjoyable week."

The history of Brinkers started in 1889 in Zoetermeer, where Bernardus Brinkers set up a trading company in dairy. In 1927, Brinkers opened his own margarine factory, and in the years after the Second World War it brought the very first chocolate spread in the world on the market. Its brand name was Choba - 'a delicacy on bread’. That marked the start of an ongoing expansion of the range with new flavours, brands and packaging. In 1960, for example, the hazelnut spread Nusco was launched; at the Anuga food fair several new 'less sugar' products sweetened with dates will be introduced. Today, Brinkers sells over 25 million jars of chocolate spread in 65 countries, from Indonesia to Canada and from Chile to Finland.

Danny Schuwer’s career began in the music industry, but after becoming a father, he felt it was time to concentrate on more serious matters than rock-'n-roll.

Through connections, he arrived in England in the early 1980s, where he worked as a sales representative for various confectionery companies, including Brinkers. This was followed by "real jobs", with multinationals like Nutricia and The Greenery in locations in England and Eastern Europe. “But when I reached the age of 50, I wanted to leave the corporate world. I wanted to go back to what I used to do in the past and started my own business as an advisor for food companies. And that’s how I met up with Brinkers again. They wanted to take their business in a different direction and asked me whether I could advise them. In 1999, I started with one day a week, which worked out very well. After a year, I was asked to join the board." 

What was the direction that Brinkers wanted to take?

"They wanted to start making organic products. The company had started doing so before I joined. In 1987, Brinkers was the first company in the world to launch an organic chocolate spread. In 1993 we launched our first organic brand: 'It's my Life'. Organic was quite unusual at the time. It wasn’t something that consumers, retailers and suppliers were really interested in. So we had to start from scratch, but we were convinced this was the way forward. That decision proved to be very successful. The market for organic products is growing everywhere, and even though growth figures are not spectacular, they are good. Now, around 80% of our products are organic. Within a few years, we want to increase that to 100%. We supply most of the big supermarket chains in Europe and are increasingly doing so with our own brands. This is quite the accomplishment, because the organic segment is still dominated by private labels."

If you want to lead the field in switching to organic, you probably need your own brands too.

"Definitely. In the early years, retailers were not requesting organic for their private labels. So parallel to the movement towards organic products, we also built up our own trademark portfolio. Much longer ago, we only had our brand Choba, and the rest was private label. Now the ratio is around 50-50. The main brands for us are So Vegan So Fine for supermarkets and La Vida Vegan for specialist organic stores. In the premium segment, we have Chocolate Symphony and Chocolate Rhapsody. 

You may have noticed that all our brand names are related to music. No, we don’t use an advertising agency for this. I come up with it myself and take inspiration from my musical past. 'It's my Life' is a song by Bon Jovi, or, for the older generation, by The Animals. I wanted something with 'So Vegan', checked my playlist, and found 'So Fine', by Loggins & Messina." 

There can be some tension between product names created by marketing people and what can be protected in trademark law. Have you ever encountered this issue?

"No, not really. Occasionally, I expect a certain name may already be used somewhere, but then it doesn’t prove to be the case. We are careful about that. First, we get NLO to examine whether a brand can be protected, then we register it and only then do we put it on the market. We don’t want to risk being overruled and having to recall products from the market." Even so, a few years ago Brinkers was summoned to withdraw their So Vegan So Fine products from stores. The plaintiff was a Dutch manufacturer of vegetarian food products whose company name bore a slight resemblance to that of the Brinkers brand. 

When Jeroen Cornelis started as a trademark attorney at NLO in 1999, Brinkers was one of his first clients, and the company still is. He concluded that Brinkers did not need to respond to the demand. In his view, there was ‘little likelihood of confusion’ between the brands, and the specific products couldn’t be considered ‘sufficiently similar’. Cornelis advised in the dispute, which dragged on for several years. He described Mr. Schuwer’s attitude as "not afraid, and driven by a strong sense of justice.

How do you look back at that case?

"I’m glad Jeroen says that. But it’s true - I wasn’t afraid, and there was no reason to be. In all honesty, I felt that the claim and the attitude of the other party were slightly ridiculous: there were far more differences than similarities between our products and names. Nevertheless, it was a long and very frustrating case. But we never once felt we should discontinue our brand, and I mean never. On the contrary! We supported the brand even more, with campaigns on YouTube and other social media, with ads in supermarket magazines, by adding new products to the range. Eventually we received a letter telling us we had one more chance to withdraw our brand. The tenor of our answer was: 'See you in court'. We never heard from them again." 

Would you say that your attitude reveals how important trademarks are for Brinkers?

"Absolutely. In the short and certainly in the long term, trademarks are our ultimate lifeline, something that distinguishes us. Trademarks are essential for building up our own position, independent of department stores. For the distribution, that dependence continues, but the consumer decides whether they want to buy our products or not. We therefore invest a lot in publicising our brands and expanding them. If the consumer wants a sustainable chocolate spread, the goal is for them to choose our products. This way, our brands grow with the company, and the company grows with our brands."