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Rebranding or launching a new product in the CPG space? Don’t neglect intellectual property

By Erin Conway of McDonald Hopkins & Lindsie Everett of McDonald Hopkins on June 16, 2020
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The coronavirus pandemic has presented many challenges for those in the consumer packaged goods (CPG) space, and beyond. Supply chain disruptions, rapid migration of point-of-sale from brick-and-mortar outlets to online retail, and overall shifts in consumer preference, eating and cooking habits, and personal safety needs has required many CPG companies to reevaluate and reinvent their products and businesses as a whole.

In the current fast-paced environment, being both innovative and nimble is critical to staying relevant with and accessible to consumers. But, when trying to execute a quick marketing pivot, new product or platform launch, or rebrand, it can be easy to let intellectual property considerations fall by the wayside. Intellectual property can be a major strength, or a major roadblock, if not managed properly.

Here are some pointers to avoid the pitfall of neglecting IP in these situations:

  1. Conduct IP due diligence
    First, make sure that your desired new brand is available for the taking. For many in the CPG space, particularly among food and beverage companies, their brand is their number one most important asset. The last thing your company needs is to invest in a new brand or product that is already being used by someone else. A trademark search and analysis is a useful tool not only to determine whether the mark is available for you to register, but also to identify potential conflicts or even litigation from a brand owner with superior rights in and to the trademark.Similarly, a freedom-to-operate or competitor landscape analysis can identify whether your new product, packaging or process are covered by any existing patents, and if there may be an opportunity to design around or license. Today’s volatile economy could make mitigating risk by being aware of others’ patent rights all the more important to the longevity of your products and business. In fact, some theorize that the rate of patent infringement lawsuits could rise if patent owners look to their intellectual property as a source of revenue in this down economy. As they say, an ounce of prevention is worth a pound of cure.
  2. Protect your brand and other IP assets
    Take the time to protect what you’ve built. You’ve harnessed your creativity, made the investment, and you’ve done your diligence, so don’t squander your assets. If your new brand, product name, or even product packaging design is available, then apply for trademark registration. Federal or state registration provides protection against competitors encroaching on your market and copycats alike.The same goes for patents. Challenging times can often lead to great innovation, and many companies in the CPG space are not taking these times lying down. Patents can protect innovative product formulas, methods of manufacture, extraction or processing, devices, and, yes, even recipes and food products. The patenting process can be expensive, no doubt, and may not be right for every business, but it is an option that should be evaluated.  Patents can add value to your business’s net worth, can provide opportunities for strategic partnerships, and give you the power to prevent others from appropriating your invention.Trade secret protection is also an important tool, particularly for proprietary recipes or manufacturing processes that are capable of being kept secret. But the devil is in the details, and the preparation your company takes and procedures it implements to maintain that secrecy are critical to whether that asset will hold up as a trade secret in court.
  3. Avoid risky product claims
    Be conservative with any product claims. Many in the industry have reimagined and reworked messaging to target immune health, stress reduction, and overall wellness, drawing on consumer concerns during the pandemic. However the U.S. Food and Drug Administration and the Federal Trade Commission continue to issue warning letters to firms for selling products with claims to prevent, treat, mitigate, diagnose or cure COVID-19. In particular, FDA has warned companies making claims that their product can boost or support immunity or immune health.
  4. Police your IP in online retail
    Be diligent about monitoring and addressing trademark infringement across e-commerce platforms. Many e-commerce sites, and Alibaba in particular, have seen a spike in sales due to the COVID-19 pandemic. It follows that third party infringers have also been hard at work to divert and confuse consumers by either engaging in unauthorized use of a trademark, or selling counterfeit goods. For registered trademarks, consider establishing a storefront on e-commerce sites such as Amazon, Alibaba, and eBay using methods like the Amazon Brand Registry. This type of seller storefront allows brand owners to market their brands and establish consumer recognition, but also allows brand owners to curb infringement and unauthorized sales on the e-commerce sites. Brand owners also have the option of submitting takedown requests on various e-commerce sites, which effectively removes infringing product listings that facilitate unauthorized sales. Alibaba’s Intellectual Property Protection Platform, for example, provides a streamlined process where rights owners can initiate the takedown process by uploading proof of valid trademark rights, patent rights and/or copyrights and submit a complaint. Also consider whether your distribution agreements or authorized dealer program needs a refresh based on the evolving nature of the sale of retail goods towards online sales.

Keeping these intellectual property considerations in mind when adapting your business and products in these changing times can mitigate risk of dispute, and also protect the your valuable brand and business assets for the future.


Connect with Erin and Lindsie on LinkedIn. 

Photo of Erin Conway of McDonald Hopkins Erin Conway of McDonald Hopkins

Erin Conway is an intellectual property attorney, providing end-to-end legal advice and service to her clients.  Erin 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…

Erin Conway is an intellectual property attorney, providing end-to-end legal advice and service to her clients.  Erin 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.

In particular, Erin has significant experience representing clients of all sizes in FDA-regulated industries, including food, beverage, nutritional supplement, cosmetic, drug and medical device companies, and understands the effect FDA and FTC compliance issues often has on IP strategy.  She has successfully defended clients in these industries against claims for patent infringement, and false advertising and unfair competition under the Lanham Act and state laws in both the federal courts and the ITC.

Erin is a skilled intellectual property and commercial litigator, with particular experience defending generic pharmaceutical companies in Hatch­ Waxman/Paragraph IV patent infringement actions. Clients trust Erin to efficiently move a case along because of her significant involvement in all phases of litigation (trial and appellate levels) including fact and expert discovery, motion practice, claim construction, summary judgment briefing, trials, and appellate briefing.  Erin’s litigation experience spans across many technology areas, including pharmaceuticals, computer and software systems, and medical devices.

In addition to her litigation practice, Erin has prepared and prosecuted both U.S. and foreign patents across a wide variety of technical fields, with expertise in the medical device, digital health, and nutritional supplement spaces.  Erin also provides valuable patent and regulatory landscape evaluations and freedom to operate opinions to her clients, and regularly drafts and reviews IP licenses and related contracts.

Before joining McDonald Hopkins, Erin prosecuted and litigated patents and other IP for over nine years at highly respected intellectual property boutique firms in both Chicago and Connecticut. While in law school, Erin was a judicial extern to both Magistrate Judge Arlander Keys of the Northern District of Illinois and the Honorable Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit. Erin served as an Executive Articles Editor of the Chicago-Kent Law Review.

Erin earned her J.D., with honors, from the Chicago-Kent College of Law and her B.S.E in Biomedical Engineering, with honors, from the University of Michigan.

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Photo of Lindsie Everett of McDonald Hopkins Lindsie Everett of McDonald Hopkins

Lindsie is an associate in the firm’s Intellectual Property Department. She focuses her practice on all areas of intellectual property law with an emphasis on domestic and international trademarks, domain name enforcement and recovery matters, e-commerce and social media enforcement, copyrights, and information…

Lindsie is an associate in the firm’s Intellectual Property Department. She focuses her practice on all areas of intellectual property law with an emphasis on domestic and international trademarks, domain name enforcement and recovery matters, e-commerce and social media enforcement, copyrights, and information and emerging technology. Lindsie has significant experience with trademark selection, procurement, management, and enforcement. She also has experience assisting with all stages of transactional corporate law, emerging business services and corporate governance to mergers and acquisitions. Combining her intellectual property and corporate experience, Lindsie regularly assists clients in the development of business and branding strategies to maximize the value of a trademark portfolio.

Lindsie earned her J.D. and Intellectual Property Certificate from The University of Akron School of Law in 2016. She received a B.A. in Psychology from the University of Dayton in 2013. While attending law school, Lindsie participated in the United States Patent and Trademark Office’s Law School Clinic Certification program. The program allows students enrolled in select law schools to practice Intellectual Property Law before the Patent and Trademark Office.

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  • Posted in:
    Intellectual Property
  • Blog:
    ILN IP Insider
  • Organization:
    International Lawyers Network
  • Article: View Original Source

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