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25 November 2019
According to market research, the global cosmetics industry is forecast to be worth $675 billion by 2020. However, the trend for bloggers and social media influencers to actively encourage consumers to buy cheap copies of higher-end products known as “dupes” has made creating and maintaining a strong, cosmetics brand particularly challenging. Dupes tend to have similar packaging to high-end brands, but the product itself is of lower quality and it is not unusual to find influencers and bloggers promoting them as affordable alternatives.
However, whilst bloggers’ enthusiasm for dupes could be seen as a threat to cosmetics brands, they can also play a role in promoting a new brand and helping it to build a loyal fan base.
So, how can newcomers use intellectual property (IP) to build a successful brand?
Start-ups / Independent businesses:
When deciding how to launch and promote a brand, start-ups and early-stage cosmetics businesses should consider IP protection.
There are three parts to successful IP protection:
1) marketing strategy;
2) trade marks; and
3) design protection.
Building a robust marketing strategy, which is distinctive and demonstrates use of a specific brand or product, can make achieving and enforcing trade mark and design registrations a much simpler process.
Trade Mark Protection:
A trade mark registration is intended to protect aspects of a brand or product that identify its source.
– What to protect?
This can include the brand name, marketing phrases and even hashtags that are associated with a brands product offering.
– Where to seek protection?
When seeking trade mark protection it is important to consider the growth plans of the business. For example, as well as seeking protection in the country where the product is currently being marketed, consideration should be given to where the business might wish to sell its products in the future.
Consideration should also be given to where the goods and product packaging are being produced. If the goods and packaging are produced overseas, it may be worth seeking trade mark protection in these territories too.
Design registrations can prevent others from copying the look and functionality of a product’s packaging. In order to protect a design, the packaging needs to be novel and this should be considered as part of the product development process. If manufacturing eyeshadow palettes for example, it may be difficult to create a packaging solution that is distinctive enough to secure protection, which means rivals could copy it without risk of infringement action.
Aligning your marketing and enforcement strategy:
Once a business has secured IP protection for its brand and products, it must then decide where to set the line when it comes to enforcing these rights. Whilst dupe products offered at a lower price point and quality may not have an immediate impact on profitability or a brand’s consumer base, it is important to consider the risk to reputation and the diluting effect electing not to enforce trade mark rights could cause to a brand.
Lesser-known brands who are still finding a loyal fan base, should consider enforcing their rights as soon as another brand or product looks or sounds too similar to ensure that they protect their market position as they grow.
Trade Mark Group
If you require further information on anything covered in this briefing, please contact Marisa Broughton (firstname.lastname@example.org; +44 1179 253 030) or your usual contact at the firm. This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP November 2019
For more information click below to hear Marisa Broughton talk about branding issues in the beauty sector.