Providing key market insight

Monitoring IP activity in the market helps businesses to plan their growth strategy from the very beginning of the product development process. Trade mark watching services provide key insight into the market and current trends by allowing a business to see its competitors’ filings and therefore which new brands and products they may be bringing out. There are many examples of food and beverage brands experiencing huge success following just one new product or ‘trending moment’ which takes the market by storm, and so businesses must engage with all the tools at their disposal to monitor consumer insights.

Avoiding infringement issues

Another crucial step is ensuring that neither the product nor its branding will infringe existing third-party rights, for example by conducting a trade mark clearance search. This involves checking trade mark registries in the relevant territories for identical or similar marks already registered, and searching other sources such as the internet, Companies House, domain names and social media for unregistered marks. Analysing this data will determine whether the proposed new product and branding is available and protectable in the relevant territories. Conducting searches at this early stage helps to avoid costly trade mark opposition or infringement disputes, or wasted investment in an unprotectable brand, which would delay product launches and hamper growth.

Protecting newly developed products

Once a new product has been created, different aspects may be protected by different intellectual property rights, and comprehensive protection is crucial. Depending on the nature of the product, the following options may be available:

• Trade mark protection: Trade mark protection is broad in scope. Trade marks can be used to protect a wide range of subject matter which allows consumers to distinguish the source or origin of the goods of one party from another. This can include three-dimensional shapes such as the packaging of goods, or even the shape of the goods themselves. Trade mark registration is therefore a valuable weapon to combat lookalike products and “dupes”, which, as demonstrated by the recent Thatchers v Aldi case, is a particular issue in the food and beverage industry.
• Patent protection: For new and innovative products, or where the manufacture of a new product involves a new and innovative process, patent protection may be suitable. Whilst the bar for patentability is high, patent protection is strong, and safeguards the competitive advantage created by businesses that have invested into innovation. Businesses should explore patentability during new product development and seek advice as early as possible. Timing is critical. Filing before product development is complete risks missing protectable elements, while waiting too long risks the product being publicly disclosed or another party securing protection first.
• Design rights: It may also be possible to obtain protection for the design of the new product. Registered designs can protect the appearance of either the whole or part of a product, and so could be used to protect the packaging of a new product, or a design on the product itself. If a product includes a design which is crucial to a business’ brand identity, it is essential that this design is protected.
• Trade secrets: For businesses within the food and beverage industry, the most important component of a new product may be a recipe or a set of ingredients. In this case, a trade secret might be the most suitable form of protection. So long as a trade secret is kept strictly confidential and is not communicated to third parties, the protection can last indefinitely.

Marketing new products

An IP strategy is also essential when marketing new products. Memorable adverts that last in memory long after the product itself can make all the difference to a business’ brand. Copyright protection in particular is a powerful weapon for protecting creative marketing assets. Copyright protects a wide range of works, and grants a business exclusive rights to do certain things with a work, such as reproducing and sharing it. However, in general, ownership initially vests in the creator of the work. So, businesses must put agreements in place with any third parties, such as marketing agencies involved in the brand/logo design, packaging design or marketing campaigns, to ensure that ownership vests in, or the relevant rights will be assigned to, the business.

Attracting investment and opening up additional funding options

Businesses can also leverage IP to drive growth through funding rounds or mergers. Strong IP rights can be very valuable, and investors often view robust IP portfolios as indicators of innovation and long-term profitability. Businesses can also leverage their IP assets through licensing and assignment, or use their IP as security for loans, providing an alternative means of securing financing. This allows businesses to access additional capital, which can be reinvested into growth initiatives.

Leveraging IP to drive business growth: How we can help

Obtaining robust IP protection and leveraging IP strategy can drive business growth in a number of ways. Our award-winning IP team at Walker Morris, including both solicitors and chartered trade mark and design lawyers, regularly advises businesses in the food and beverage sectors on how best to protect and leverage their IP during new product development, whilst also ensuring that they do not infringe any third-party rights. If your business needs to create or reconsider its IP strategy, do not hesitate to get in touch.