Countdown to Launch – Your Brand Protection Checklist

When it comes to protecting your food and drink brand, it’s important to plan ahead so that you can get all of your ducks in a row prior to launching your product. Asking the right questions and obtaining relevant advice is invaluable in the early stages of your business. In a worst-case scenario, you might be sued for infringement and/or forced to rebrand. If this comes at a time when you have already designed your packaging, secured your Instagram handle and have started gaining traction with your marketing, a rebrand might at best set your launch back or at worst, be ruinous to your company. It could be particularly costly if you are in the middle of an investment round, or about close a deal with a retail outlet.

Here are our recommendations of questions to ask and actions to take prior to launching your new food or drink product. We’d recommend getting the ball rolling 6-12 months before your launch if possible.

  • Identify the unique elements of your food or drink product and seek advice early on to work out what might be protectable Intellectual Property – this will almost definitely include a brand name and logo but may also extend to the unique shape of your smoothie bottle or the process by which your pretzel is made.

 

  • Be creative – to be protectable as a registered trade mark, a brand must be distinctive for the goods and services you’ll be selling; it cannot be descriptive. The more creative you can be, the less likely it is that someone has got there first. For example, a distinctive trade mark like CURIOUS FOX is probably going to be easier to enforce and protect than HEALTH SNAX for your healthy alternative to crisps.

 

  • Try not to get wedded to a single brand name too early on in the process – shortlist two or three alternatives that you would be happy to take forward and seek advice early on in the process so that you can obtain the necessary clearance to use and register before your deadlines for printing your packaging.

 

  • If you engage with a branding agency to help design and develop your packaging, ensure that any associated copyright is assigned to you/the instructing company. Subject to any contract to the contrary, the copyright will automatically go to the branding agency, so it won’t form part of your Intellectual Property portfolio and you wouldn’t be able to rely on it if you needed to in the future.

 

  • Focus on the elements within your brand that are going to be most important for you commercially and prioritise protecting them. Will you use a shortened version as an icon on your social media pages? Is the font or colour you use a particularly important part of your brand story? Which elements of the brand/product would you feel most threatened by someone copying? Speak to your Trade Mark Attorney so you can work out a strategy to protect these elements as far as possible and if they can’t be protected, know why!

 

  • Brainstorm the range of goods you will sell under your brand, both now and feasibly in the future. If sales of your nut butter really take off, might you branch in to nut-based milks? A great example of this is alcoholic drinks manufacturers who have diversified to sell hand sanitiser during the recent global pandemic. It is perhaps more difficult to predict these kinds of expansions but have the conversation – it’s important to get the scope of a trade mark application right prior to filing as you can’t broaden it afterwards.

 

  • Contact a Trade Mark Attorney to conduct clearance searches to check to see if your brand is free to use and register in your core markets. Quick identical checks of the UKIPO register and Google searches (which you can do yourself) will identity any red flags and you may then decide to take an alternative mark forward but it’s worth conducting some more thorough clearance searches to include similar marks to get an overall view. For example, an earlier registration for CURIOUS RED FOX would likely be a barrier for you using and registering CURIOUS FOX, but it might not come up in your own searches.

 

  • Once your mark has been cleared, file applications in your core countries of interest. You can utilise the 6 month priority period to file subsequent applications and this is a helpful way of spreading out the cost, as well as seeing how sales go in these first 6 months, helping you to decide which countries are going to be important for you going forward before you invest in protecting your trade mark there. Think in particular about where you are manufacturing (if it’s outside the UK) and which foreign markets might be particularly receptive to your product.

 

  • Be vigilant for any third parties that are getting too close so that you can enforce your rights as necessary. It’s possible to set up watches of trade mark registers so that you are alerted to any applications that are filed that are similar to your own.

 

  • Keep dated records of your use of your trade marks, including in articles, social media, on invoices and on your website. UK and EU trade mark registrations become vulnerable to cancellation five years after registration if they haven’t been used and if this is ever questioned, having good records of your use makes defending such an action much easier.

 

To discuss how we can help you protect and maximise the value of your food and drink business, please contact Alice via Alice.Anderson@gje.com

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