4th October 2023
A key aspect of being a successful business is innovation. New product development is vital for businesses to maintain their competitive edge and requires regular investment. However, new product development on its own is not enough and businesses need to protect their innovation through intellectual property. Alan Harper from the our intellectual property team explains.
A key aspect of being a successful business is innovation and new product development (NPD). NPD is vital for businesses to maintain their competitive edge and requires regular investment. However, NPD on its own is not enough and businesses need to protect their innovation through intellectual property (IP).
The effective use of IP and having an IP strategy for NPD reduces risk and greatly assists with bringing a new product to market. There are several IP considerations throughout the NPD process, and it is important to factor these in from the start of development through to launch. I set out below a few key considerations for an IP strategy during the NPD process.
A trade mark clearance search is a key step when selecting a new brand. A trade mark clearance search involves collecting and analysing data to determine whether a proposed new brand is available and protectable. The results will determine whether or not your suggested brand is unique enough to be launched. The findings will also help you evaluate the potential strength or weakness of your brand in the specified areas and territories. This step ensures that you can secure registered trade mark protection for a new brand in those territories which are important. It also detects any potentially conflicting third party rights which might potentially cause you legal trouble.
As well as protecting a proposed new brand and its logo, it is important to consider whether other aspects of a new product could be protected. The scope for trade mark protection is broad and trade marks can be used to protect an array of subject matter. For example, this includes three-dimensional shapes such as the packaging of goods or the shape of the goods themselves. The purpose of such a registration is to protect the “look and feel” of a product and can provide valuable IP rights to combat look alike products. It is no secret that the food and beverage industries are teeming with competitors and this protection is important to protect your new product.
Patents are a very effective way to protect innovation. Patents protect new and inventive products and processes and a granted patent is a strong IP right to enforce. Seeking patent protection is a key step for any NPD and must not be overlooked. Whilst there is a perception that the bar for patentability is very high, which to an extent is correct, this should not deter businesses from exploring patentability during NPD. If an aspect of the new product or its manufacturing is capable of patent protection then this should be explored as the rights granted are a very effective way to maintain a competitive advantage.
This is a careful balance between securing protection and obtaining the best protection. If protection is sought too early then you may not have completed NPD and you may not know everything you need to or can protect. Alternatively, if left too late there is a risk that someone else obtains patent protection first or your product may have been publicly disclosed which can impact upon your ability to obtain patent protection. It is important to consider patent protection from the outset and seek advice as early as possible.
Typically, businesses will involve third parties in the development of new products. This may include for example input on the brand/logo design, packaging design or marketing campaigns. When third parties are involved in development, it is key to ensure that a contract is put in place which governs the ownership of any IP which is created. In the absence of a contract, a third party may own the IP which they have created for you and this can naturally be problematic. It is therefore essential that third party involvement is carefully considered, and contracted, at the start of any NPD.
We can certainly agree that IP plays a major role in new product development, particularly in the food and beverage industry. Businesses in this industry continually seek to innovate, with aims including the invention of new consumer goods, adaptability to change client preferences, compliance with ever-changing legislation, and adopting greener practices. Businesses can maintain their competitive advantage by protecting their R&D-generated IP from exploitation by other companies. At Walker Morris we have an award-winning Intellectual Property team which offers specialist advice across the full spectrum of intellectual property law. Our team includes both solicitors and chartered trade mark and design lawyers. We can provide a complete service for the whole spectrum of IP related matters so please give Alan a call.