How to make sure your next export creates reward not risk

Exporting to new markets offers clear opportunities to grow your business. There’s the potential to raise the visibility and value of your brand and, crucially, to increase market share, customer base and profit. All at a time when the economy at home is dealing with the uncertainty of Brexit.

Indeed, following the UK vote for Brexit, there’s perhaps never been a better time to export. The recent fall in the value of sterling has made British imports cheaper and hence more attractive, so there will be a growing demand for your products abroad. The value of “British” also continues to play well abroad and can command a premium in certain countries. Obvious export targets include huge markets like China, Brazil, Russia and India, but more established economies like Germany and the USA can also offer real potential.

However, before you start to export, you will need to do your research and plan carefully, so you’re aware of the biggest risks and can maximise the opportunities that the export market presents.

Here are our six top tips.

1. Check you’re safe to use your mark

Before commencing use in a new territory, conduct searches to see if anyone else has earlier trade mark rights that you could be infringing and that could be used to oppose any trade mark application you file. That way you’ll identify threats early on and avoid costly infringement proceedings, not to mention the cost of filing a defeated trade mark application. In a worst case scenario, you could be faced with an injunction preventing the use of your mark, a forced rebrand, and a considerable waste of time, money and resources. Forewarned is forearmed.

2. Know your consumer – get local advice

Consumers and their habits vary hugely around the world. What works well at home might be a complete turn-off abroad, so it’s crucial that you get local advice. Start by checking how your brand translates. For example, when Gerber baby food was sold in France, the brand owner did not realise that “gerber” means “puke” in French. And it’s not just the direct translation you need to consider – check if your brand is slang for something, or sounds like another word you wouldn’t want associated with your products. Pay particular attention to countries that don’t use the Roman alphabet, especially if you’re planning to replicate your brand in local characters by literal translation or transliteration. Make sure there are no negative or misleading connotations which could put consumers off or confuse them, especially when it comes to new or unfamiliar products.

3. Register your trade marks

This will help you retain control and ownership of your brand. In the UK, you start building up unregistered rights as soon as you start using a mark, but many other countries don’t recognise unregistered or “use-based” rights and instead operate a “first to file” policy. That means a local squatter can register the legitimate owner’s mark and then prevent genuine exports, even if the owner has been operating there for many years. It’s also easier and so cheaper to enforce registered rights against third parties, since they’re easier to evidence than unregistered rights. Being able to produce a registration certificate will make your life a whole lot easier and indeed local business partners are increasingly insisting on seeing this before concluding a deal, to minimise their own risk. Lastly, educate consumers that your brands are protected, by using the ® and ™ symbols. Note that ® should be used only where you have a registration in place; if in doubt use ™.

4. Make sure your packaging meets both regulatory requirements and consumer perception

Be aware that both of the above may be different from what you’re used to at home – and keep an eye on future developments and any associated risks. For example, by listing your ingredients to meet regulatory requirements, you could be helping your competitors to work out the innovation behind your product. Defend yourself against this by getting patent protection, which will both give you a monopoly to that invention and add value to your business. Give careful consideration also to how you present information to consumers. Consumers are taking an increasing interest in what goes in to their food and drink and this is reflected in the push towards “clean labels”, the aim of which is to remove “chemical sounding” terms likely to generate negative consumer perception, and to replace them with more natural-sounding alternatives. For example, “rosemary extract” sounds much more palatable than antioxidants such as butylated hydroxyanisole! However, beware of differing consumer reactions to any kind of relabelling; European consumers tend to be suspicious as to the integrity of a product when they see a label simply stuck over existing packaging. Conversely, other markets like China positively welcome relabelling since it often indicates a Western and hence more desirable (and, in some cases, safer) product.

5. Make sure your business partners sign robust contracts

This applies to manufacturers, licensees, distributors and anyone else you’re working with. Make sure contracts include clauses that acknowledge you as the owner of the IP rights and prevent the other party applying to register your marks or anything similar as a trade mark, domain name, or anything else. Also make sure there is a clear written agreement setting out the scope of each distributor’s operation by specific territory, as well as what happens to any excess stock at the end of the agreement. Hopefully you will never need to rely on these agreements but relationships do break down and being smart at the outset will help to protect you.

6. Keeping an eye on the competition

Early warning will make your life much easier, so stay alert and take swift action if necessary. Get your local partners, distributors etc. to keep an eye out for any counterfeit or copycat products and let you know as soon as they see a problem. Likewise, make use of the more formal monitoring procedures, for example trade mark watching services which flag any similar marks that are filed, which can often be a precursor to conflicting products actually going on sale. You can also record your registered trade marks and designs with Customs authorities both at home and abroad, so you’re notified of any counterfeit products entering or leaving the country. Keeping ahead of the competition in this way can be key to the success of your business, helping you to both manage risk and save you money in the long run.

If you would like to discuss any of the issues raised in this article, then please contact Edward Carstairs, Senior Associate via

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