Business is booming in the cosmetics and beauty sector, but a busier marketplace can make it harder for new brands to stand out. For this year’s International Beauty Day on 9 September, Natasha Walker discusses what businesses should consider when deciding to secure a bold and beautiful trade mark for their brand.
Described by Statista as a “powerhouse of growth and innovation”, the global beauty industry is a haven of opportunity for start-ups and new brands.
Indeed, aside from a dip in 2020, the global cosmetics market has experienced “almost incessant growth” since 2004, with Statista forecasting that it will generate nearly $140bn by 2030.
The UK is no exception. Current estimates place the number of beauty technology start-ups in the UK at 1,660, with an average of 107 launched every year for the past decade.
Such an exceptionally busy marketplace, however, also comes with challenges for start-up brands looking to make their mark.
It is no exaggeration to say that branding is everything in the cosmetics and beauty sector. Adopting a strong trade mark and securing protection for it early is, therefore, very important.
What is a trade mark?
A trade mark is anything that can distinguish the goods or services of one business from those of another. It can be almost anything, from a word or a logo, to even a sound or shape.
Trade marks help customers to identify the origin – and, in some cases, the expected quality – of a product or service. Registering a trade mark provides the owner of the registration exclusive rights to use the trade mark and thus protects the brand’s integrity, reputation and distinctiveness.
Applying for a trade mark registration is not as simple as filling in a form, however. Not everything is suitable for trade mark protection, making it important to evaluate a possible trade mark and the strength of any protection that may be received before starting the process of applying for a trade mark registration.
To truly benefit from a trade mark registration, and to ensure that the application process goes as smoothly as possible, businesses should consider the following things when developing their new brand:
1. Have I seen it somewhere before?
The most crucial part of selecting a new brand name is ensuring it is free for use and registration in your desired territory. If there is an existing earlier identical or similar trade mark registered, you may be forced to rebrand, pull your goods from the market and potentially start over if you have already launched. This is why it is important to undertake a search before committing to a new brand name.
As a first step, businesses should provide a trade mark attorney with a list of names and/ or logos that it may wish to use for its new brand.
The attorney will then conduct a preliminary ‘knock-out’ search that will identify any immediate issues and narrow down the list to only those options that have no or a very low risk of potentially infringing existing trade mark registrations.
An attorney can then conduct a comprehensive search into the remaining names or logos, providing advice on which elements are best suited to trade mark protection, and whether any changes will need to be made.
2. Is my brand name too ‘basic’?
Whilst every jurisdiction’s Intellectual Property Office (IPO) will have its own laws concerning what can and cannot be registered as a trade mark, most take a similar approach when it comes to brand names that are too descriptive or lacking in distinctiveness.
The UKIPO, for example, will refuse applications for trade marks that “consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographic origin, the time of production of goods or of rendering services, or other characteristics of goods and services.”
Descriptive trade marks are typically brand names which directly describe the nature or quality of the goods or services protection is sought for. While such marks are often considered, they should be avoided since they lack the required distinctiveness to be an acceptable trade mark.