We are now in full Christmas advert mode for the must-have food and drink products for your Christmas table. #
Many food and drink manufacturers bring out special products or limited editions to capitalise on the Christmas market, and, always with our eye on the intellectual property, we take a look below at what intellectual property considerations there may be in the promotion of a new product.
Trade marks, copyright, and designs (and even trade secrets) can all form part of product and packaging design, or advertising campaigns. There are a few golden rules for a successful launch, as outlined below.
Get ahead: IP considerations at the concept stage #
Buyers and manufacturers are planning for Christmas launches as early as May and June, but this isn’t limited to just Christmas products; brands with the most successful launches begin preparation months in advance to ensure a smooth and impactful launch.
At this initial stage, clearance searching should be undertaken to check if the name or slogan you wish to use is actually free. The worst-case scenario, which could arise for any manufacturer in the key Christmas market, or at any time, is having to withdraw a product from the market due to infringing third-party rights after launch.
If you have a new name or slogan you are going to use, undertaking trade mark clearance searches prior to any print run for packaging is key.
Now is the time to do this for spring launches.
Secure your own rights early #
Having searched and confirmed you are free to adopt the name, slogan or packaging you want to attract consumers, you need to guarantee you will be able to use it at launch – possibly just a few months away. The time between deciding on the new name, slogan or packaging is when you are at your most vulnerable – commitment to costs of design agencies and print runs are being incurred, and there is the potential of a competitor obtaining rights for a conflicting name, slogan or packaging before your launch. Seeking registration early acts as an insurance policy, giving you the rights, and hopefully a registration, prior to launch.
However, this can create a dilemma. Trade mark applications are a matter of public record and as soon as you file, they can be seen by competitors, which could give them commercial information on what you are launching. Additionally, publications like The Grocer may even make comment on a possible new product/makeover for the Christmas market. There are also requirements in the UK that the application must be filed in the name of the party who is going to use it, for there to be the required genuine intention to use.
Design protection as a confidentiality tool #
Design registration offers a solution as it allows deferment of publication. In the UK, you can file a multi-design application to cover the elements of the new packaging or shape of the product as well. It does require the design to be new, but if the artwork of the packaging is new, even if it incorporates an established brand name, design registration is an option, and the deferment can be lifted the week of launch to obtain the registration certificate.
Protecting confidential information during development #
Not having a launch spoiled, or a competitor gaining information to prepare a competing product, is key. Ensuring all colleagues and third-party suppliers know information provided to them is confidential (and a refresher on trade secrets being intellectual property always assists). Non-disclosure agreements with external partners and suppliers should always be in place.
Expanding your trade mark strategy #
It is not just the brand name that can be a trade mark. A slogan, new logo or even a 3D mark could be registered. Consider the distinguishing features of your product that you ideally do not want competitors to be able to use, and consider trade mark registration for those elements.
Post-launch IP protection #
While the ideal time to take action on intellectual property for a new product is before the print run, and not when it is on the market, it is still possible to seek protection via trade marks and registered design post-launch.
It can be that it is when a product is on the market, it becomes clear what has value in the eyes of the consumer that you may wish to ring fence against third-party use in the longer term.
December is definitely the time to be thinking ahead to product launches in spring and what IP protection can, and should, be obtained to protect the launch. But there are still steps that can be taken to strengthen your IP for products currently on the market to improve your business’s intellectual property position.
Get expert guidance for your product launches #
If you have a product launched, or soon to launch, and would like guidance on the best IP protection routes from product development stage to taking it to market with intellectual property fully considered, speak to one of our intellectual property experts.
