First published in FMCG Business Leaders Forum 2022

The FMCG industry provides a 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 to use IP Rights intelligently to achieve sustainable growth, profitability, and competitiveness.

We have seen a firm shift from reacting to the COVID-19 pandemic crisis to reinventing products and services as a result. FMCG companies have also been forced to be innovative to keep up with changing consumer demands. From an IP point of view, that means several steps must be taken to prepare companies dealing with these changes.

The first step requires the organisation to identify, capture, organise and protect their IP, such as trademarks, patents, designs and trade secrets. Having a professional IP Audit is extremely useful, especially where IP has been developed haphazardly over time.

This protection of IP Rights is not only good risk and compliance management, it can also help set the tone from the top down, 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 disclosed further within the company or promoted.

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 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 – making sure the trade mark is in fact available to use in the markets where you intend on promoting it, and then taking targeted steps to ensuring you can protect and legally own the 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 trade mark reactively, or without actually considering how this fits within the long term business strategy. 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 UK and Europe are likely to bring a positive spin for exporters beyond 2022, so it pays for consumer goods companies to consider these markets now in their global IP strategy.

A UK trade mark registration protects your rights in England, Wales, Scotland and Northern Ireland. An EU trade mark 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 register in the UK, or longer in the case of the EU. Although trade marks are largely handled in the same way under both systems, there are some differences, which can be important from a strategy viewpoint, so it pays to seek the advice of an IP professional when considering this.

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.