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Consumer insights: What’s hot and what’s not

Keeping an eye on market trends is vital, after all, failure to adapt is a common reason for businesses failing. There are many examples of food and drink products catching lightening in a bottle and enjoying a meteoric rise in popularity and success with a new product and stealing the march over established businesses. Businesses have many tools at their disposal to engage with consumer insights, however, intellectual property can assist.”

Alan Harper – Partner, Intellectual Property, Trade Marks & Designs



A common approach is to liaise with your advisors to put a trade mark watching service in place for competitor brands. This is a great way to see what trade marks your competitors are filing to give you an indication on new brands and products. This will also feed into your own IP strategy. Ideally, you will be the first player to move on a new trend. However, this does not always happen. In this scenario, care must be taken when utilising consumer insights and reviewing third-party products to ensure you do not infringe any third-party intellectual property rights.

NPD – Important steps before launch

Bringing a new product to market involves many different steps ranging from design to manufacture and logistics. However, intellectual property should be a key consideration both from the perspective of avoiding any third-party challenges and protecting your own product.

Trade Marks

Dealing with third-party rights first, conducting a thorough trade mark clearance search prior to launching a new brand is of huge importance. It will help establish whether the brand is available and can be protected prior to launch. Trade mark searching involves checking trade mark registries for identical or similar marks registered by third parties as well as conducting searches for unregistered marks including searching the internet, companies house, domain names and social media. It is important to identify any issues from the outset as any conflict is likely to result in the third party opposing any trade mark application which you make and potentially a claim for trade mark infringement. This can be a costly and time-consuming process.

Assuming there are no third-party trade marks which might present an issue, once a brand has been selected it is important to seek registered trade mark protection. Trade marks protect brand identity. This is very broad and includes words, logos, shapes, colours, sounds and other distinctive elements which allow consumers to uniquely identify and distinguish the source or origin of the goods of one party from another. Trade marks are a valuable tool. A strong and identifiable mark will help in building your customer base and product identity. In a competitive market such as the food and drink sector where multiple lookalike products line the supermarket shelves, a portfolio of registered trade marks provide brand holders with important rights. Additionally, securing a trade mark will help with tackling third-party “dupes” or infringements.

Design Rights

In addition to trade mark protection, another intellectual property consideration for new product development (NPD) is the protection of the design of the product. The design of a product can play a significant role in the consumers purchasing decision. It attracts a consumer to a specific product and leads them to prefer one over the other giving a competitive advantage. Therefore, it is essential that the design of a product is protected. Registered designs protect the appearance of the whole or part of a product. Often protection is sought for the packaging of a new product. Obtaining design protection provides yet another tool to protect your new product against third parties.

Designs and trade marks protect different aspects. There are various examples where infringement claims based upon trade marks have succeeded where design claims have failed and vice versa. So, building a broad intellectual property portfolio containing both is very helpful and gives you more options.

Patents and Trade Secrets

Alongside trade marks and designs, if the manufacture of a new product involves a new or innovative process then it is possible that patent protection could be obtained. Patents cover inventions and are relevant in a broad array of scenarios. For example, if your new product requires a new packaging process/technique or if a new machine is required to achieve the necessary results, patent protection should be explored. As patents may not always be an option, businesses often falsely assume that this is always the case and miss opportunities to secure protection. Patents are very valuable and powerful intellectual property rights so seeking protection should not be overlooked. Alongside patents, trade secrets can be useful in protecting both ingredients and recipes which are often the most crucial component in product development. Provided confidentiality is maintained, trade secrets can last indefinitely if the recipe is kept strictly confidential and is not communicated to third parties. There are a number of food and drink businesses which pride themselves on their “secret recipe” which has been kept secret for decades, if not over a century.

Copyright in advertisements

Whilst focus is typically given to the product itself when looking at NPD, the related materials to the new product should not be overlooked. In particular, any advertising or marketing. As a very competitive industry, an eye-catching advert can make all the difference with an advert often living on in popular culture long after the product itself. Protecting the copyright should therefore not be overlooked. Copyright is an IP right which protects a wide range of works, many of which are commonly found in material used in advertising a new product. Copyright will give you the exclusive right to do certain things with that work including copying that work and communicating it to the public. The general rule is that copyright is owned by the creator of the work in the first instance. Therefore, it is important to ensure that where someone else has created work on your behalf that there is an agreement in place, and you should seek legal support to ensure there are no issues in the future.