Time to up your global IP strategy for 2022?

Time to up your global IP strategy for 2022?

The Fast Moving Consumer Goods (FMCG) industry provides an interesting and challenging market when it comes to Intellectual Property Rights. As it is one of the most crowded and competitive markets, it has become crucial for FMCG companies use IP Rights intelligently to achieve sustainable growth, profitability, and competitiveness in such a market.

We have seen a firm shift from reacting to the COVID-19 pandemic crisis to reinventing products and services as a result. As people have changed the way they live, work and socialise, FMCG companies have also been forced to be innovative to keep up with changing consumer demands. What this means from an IP point of view is that several steps need to be taken to prepare companies dealing with these changes, which can be fundamental to the long-term success strategy. 

The first step typically requires the organisation to put in place policies and processes to identify, capture, organise and protect their portfolio of IP, such as trademarks, patents, designs and trade secrets. Having a professional conduct an IP audit for an organisation can be extremely useful, especially where the IP has been developed haphazardly over time. This respect for and protection of IP Rights is not only good risk and compliance management, it can also help set the tone from the top down in terms of creating a positive “IP culture” for the organisation. 

In the new product development phase, if there is anything novel being created from scratch then it pays to discuss this with an IP professional before anything is published or disclosed further within the company. This is where non-disclosure agreements and confidentiality clauses within staff employment agreements come in handy, making sure that employees who are working on any confidential new product development don’t subsequently share this knowledge, or outsiders who are also working on the project (such as a contract manufacturer), don’t do the same.

In the commercialisation and marketing phase, a product’s brand, including its commercial image, is generally the most visible and long-lasting IP right that companies must use and exploit.  It pays to consider the overall brand strategy early on in the piece – making sure the brand/ trade mark is in fact available to use in the markets where you intend on selling and promoting it, and then taking targeted steps to ensuring you can protect and legally own and control the brand/trade mark in those markets. Companies considering exporting are well advised to develop a global IP strategy that dovetails with their business strategy. Often businesses try to register in many different jurisdictions to secure their brand/trade mark without actually considering the strategy – and this can be a very expensive exercise. Being strategic about the where and how can not only save you money, it can provide you with a better and more expedient outcome.

Free trade agreements between New Zealand, the United Kingdom and Europe are likely to bring a positive spin for exporters beyond 2022 so it may pay for consumer goods companies to consider these markets now in their global IP strategy. In October last year an agreement in principle to confirm the parameters of a free trade agreement with the UK was achieved and negotiations are also underway to achieve a free trade deal with Europe.

A UK trade mark registration protects your rights in England, Wales, Scotland and Northern Ireland. An EU trademark registration protects your rights in the 27 member countries of the EU (excluding the UK), making it the mark of choice for many businesses who currently trade abroad, or who plan to expand into Europe. Both UK and EU Trademarks are registered on a first come first served basis, and in a straightforward scenario can take approximately 5-6 months to registration in the UK or longer in the case of the EU. However, there are some slight differences between the requirements of each system, for example whether there is current use of the mark or a bona fide intention to use the mark. Therefore, it pays to seek the advice of an IP professional when making such decisions.

Overall, 2022 should be the year that you properly consider the strategy behind your IP protection, so that you can take advantage of future opportunities as they arise and enable good risk management.

By Stephanie Hadley, Associate, James & Wells

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