by Erin Conway, Contributing Writer
So much of the conversation around building a business is focused on logistics such as manufacturing or attracting the financial resources that enable the business to grow. Yet protecting your investment in the intellectual property (IP) your products or services represent can be just as crucial to your success as an entrepreneur.
We are pleased to present this second installment in a three-part series on Protecting Your IP, contributed by Erin Conway. Erin, a Naturally Chicago member, is an intellectual property attorney at the Chicago firm McDonald Hopkins, providing end-to-end legal advice and service to her clients. She works closely with her clients to develop comprehensive and business-focused protection, monetization, enforcement, and dispute resolution strategies, taking into account all areas of intellectual property, licensing and contracts.
Enjoy this informative article and learn more about Erin in the end note.
A lot goes into how a brand writes and tells its story to consumers. Whether it be clean label, ethical sourcing and manufacturing, sustainability, or plant-based nutrition, these seemingly intangible aspects of a brand’s identity can provide tangible value.
They do so by building brand loyalty and engaging consumers who want to put their dollars in the coffers of companies that align with their personal ethics. Even more, the narrative a brand tells can be an important tool for differentiating itself from other market players and, potentially, for gaining market share.
Most companies know they can protect their inventions, brand names, logos and product packing through patents, trade secrets or trademark registration, but may draw a blank when it comes to securing the more abstract elements that make up their brands’ ethos and identity. So, how do you protect these intangibles?
Here are a few suggestions:
1. Have strong partner agreements in place.
Confidentiality and Exclusivity are two key aspects of protecting your brand identity through strong contractual relationships with your partners — whether they be suppliers, distributors, co-manufacturers, retailers, collaborators, or influencers.
The last thing your company needs is to have its “secret sauce” leaked — or worse, stolen — by one of its partners. At the outset, think critically about what information you share with your partners, particularly if you consider it a trade secret.
Also, take an expansive view on what you define as proprietary or confidential information. Proprietary information can include not just a secret formulation or recipe, but also confidential know-how about your manufacturing and supply chain, supplier and customer identities, and quality or purity standards.
If sharing proprietary information is critical to the relationship, your partners should always be obligated to treat it with the utmost care. Make sure that your partner agreements include a confidentiality clause that not only prohibits disclosure of proprietary information, but also limits or sets standards for how that information may be used internally by your partner to reduce risk of disclosure. And be sure your employees understand the importance of protecting company proprietary assets in dealings with partners.
Additionally, while you may have to pay a premium, exclusive agreements are a great way to protect assets and relationships that go to the core of your brand’s identity. You crisscrossed the globe to find the purest, most ethically grown and harvested, and sustainable source of your product’s key ingredient. You’ve spent countless hours and dollars nurturing a relationship with a maker of sustainable packaging. An influencer whose ethos perfectly aligns with your brand’s values has shown interest in an affiliation.
LOCK. IT. DOWN.
Depending on your budget and your partner’s willingness to limit their engagements, exclusivity can be broad (i.e., the partner agrees to work with you and only you), or even limited in scope by industry or type of product. Either way, an exclusive contract can be a highly valuable way to preserve your brand identity, by limiting your competitor’s access to the special good or service your exclusive partner provides.
2. Think outside the traditional IP box.
It’s easy to get stuck in ruts of conventional IP protection norms: Patent the core products and trademark the brand names and logos. But crafting a well-rounded IP strategy also requires taking a step back and identifying more ephemeral aspects of both your brand and innovations adjacent to your core products.
If, for example, you’ve developed a sustainable packaging scheme for your product or a manufacturing process that results in less waste, consider patenting it or maintaining it as a trade secret, particularly if those innovations are germane to your brand identity. IP protection is even more critical if that know-how is desirable to others in the industry (and thus a target for theft).
IP protection will allow your company to put those achievements front and center in customer-facing messaging and marketing campaigns, without compromising the underlying asset. Similarly, consider registering more than just your core brand names and logos as trademarks. Slogans, catch phrases and themes that embody your brand’s mission, vision or ethos, and apply across product lines, can be very useful in building brand identity.
And don’t forget about those punchy hashtags—like Vital Proteins’ #StayVital®—that can help build a following on social media. If it has come to identify your company’s goods or services, then the hashtag may be protectable as a trademark.
3. Get certified.
The number of labeling certifications available to CPG companies can be overwhelming — vegan, fair trade, B Corp, clean label, cage free, organic, naturally grown, sustainably grown, women owned, carbon neutral, and the list goes on. While you shouldn’t assume direct ROI for any particular certification, these labels are a great way to communicate your brand’s values, gain credibility and build trust with your value-conscious customers.
Certifications aren’t necessarily a form of IP, but they may provide a certain amount of market exclusivity if they help to solidify your brand identity and differentiate your products from others on the shelf.
In the end, your brand identity is a valuable asset. Put an emphasis on protecting the elements of your business that embody your brand’s values and mission and that resonate with your customers.
Erin Conway has significant experience representing clients of all sizes in industries regulated by the U.S. Food and Drug Administration (FDA), including food, beverage, nutritional supplement, cosmetic, drug and medical device companies, and understands the effect FDA and Federal Trade Commission compliance issues often have on IP strategy. Erin provides FDA regulatory compliance, including labeling, good manufacturing practices (cGMPs), and dispute resolution advice to clients in this space. She has also successfully defended clients in these industries against claims for patent infringement, as well as false advertising and unfair competition under the Lanham Act and state laws in both the federal courts and the International Trade Commission. In addition to her litigation practice, Erin has prepared and prosecuted numerous U.S. and foreign patents across a wide variety of technical fields, with significant expertise in medical devices and systems (including diagnostic, orthopedic and surgical devices), mechanical devices, cosmetics, and nutritional supplements.