Bird & Bird: On Protecting Your Wellness Brand

For any wellness brand or entrepreneur, the legal challenges of setting up a business can be a minefield, filled with jargon, red tape and regulatory complexities.

Modeling business growth models, ensuring data protection and navigating contractual agreements are just a few areas in which new and established businesses often require expert guidance.

Combining legal expertise with deep industry knowledge and creative thinking, International law firm Bird & Bird LLP are experts in these type of strategic commercial issues.

As an official partner of Welltodo’s first Business of Wellness Summit; a groundbreaking event focusing on innovation and entrepreneurship in the wellness industry, Intellectual Property Associate Emma Green, will act as one of the judges for the live pitch contest.

With a strong commitment to clarity, originality and passion, Bird & Bird LLP pride themselves on helping clients achieve their commercial goals, and understand why protecting your brand is an essential investment for your business.

Here, Green gives her top tips for safeguarding your concept, while making your mark on the wellness industry:

Consumers driving the wellness industry seek more than just a clothing company, a new workout, or a healthy alternative to the standard lunchtime sandwich – they value brand integrity and want to build relationships with brands that align with the lifestyle they aspire towards.

Wellness companies with a strong brand are well positioned for success and having a solid brand protection strategy in place from the outset can save a lot of wasted time, effort and money, further down the line.

Checks on trade marks, designs and domain names are an essential step before you commit to one idea, while brand protection should also be a priority for any well-established business considering a re-brand. It is especially relevant before instructing a design agency to create new artwork or web content.

So what’s the most effective strategy?

Small scale or worldwide domination?

Trade mark and design rights are territorial. Think about where you want to target your business and draw up a list of key markets you intend to target immediately. Think about the first 1-2 years as well as your long-term expansion plans.

Focus on the essential countries first. There are ways to extend protection to additional countries within the first 6 months and you can also combine multiple countries into one international application, which saves on cost and time.

Wait a minute, what do you actually do?

Trade mark applications are tailored to cover a specific range of goods or services.

A registration gives you the ability to prevent others using your brand (or something close to it) in relation to the goods and services covered by the registration. Design registrations can also be an important tool in preventing others using your design (or something very close to it).

What is your core business offering? What do you intend to sell to consumers in the next 5 years? Do you have plans to expand? What would you be most bothered about someone else doing?

These are all important questions that should be addressed before filing for protection. You can’t add extra material into an application after it’s been filed, so be aware that anything you’ve missed would need to go into a new application, which would drive up the cost.

You may wish to consult an IP lawyer or trade mark attorney to help decide what needs to be covered.

Clearance checks – don’t run before you can walk.

Once you know your territory and the goods/services for which you need protection, it is essential to check whether the design or mark you want to use (which could be plain words or a logo with words and/or images) is (1) available and (2) can be used.

Clearance searches look for identical and similar marks which have been registered for the relevant goods/services or designs for the same or similar products. They also check whether anyone might have unregistered rights in similar marks.

We do this to identify the risks – someone with an earlier registration could sue for trade mark or design infringement if your brand is confusingly similar to theirs. And, in a worst case scenario they could get an injunction to remove your products from the market, meaning you could have to pay them damages.

Checking the availability of a domain name is also important, but is entirely unrelated to trade mark and design clearance. Just because a domain is available doesn’t always mean there is no risk of infringement.

Draw a line in the sand – and file your applications.

Once you’re happy with the search results, it’s time to file the applications and get the domain name registered.

Act quickly as your rights run from the filing date of any application.

The time it takes to get your mark or design registered depends on the target countries and whether anyone opposes your application, so having a good relationship with an IP lawyer will help smooth the process out, as they can deal with any issues on your behalf.

Even if you’re already a few years into trading, reviewing your protection and checking whether it still fits your business is important. You might find you need to file some new applications to top-up your protection to cover a re-brand.

Maximising the strength of your brand – why is this important to me?

-Build strong foundations first. Clearance searches identify risks and (provided you use the results to guide the development of your brand) can significantly reduce the chance of being sued for trade mark or design infringement.

No one wants to spend money generating consumer interest in a brand if shortly after launch the threat of litigation means you have to change it all again.

-Obtaining the right protection means that you can quickly and effectively stop people who try to copy your brand or take advantage and damage the reputation you have created. The wellness industry is increasingly crowded and you need to be able to protect your brand and space around it to remain attractive and relevant to consumers.

– A brand protection strategy is also a major turn on for investors. It shows commitment, forward thinking and helps to promote your business as a viable investment opportunity.

This is true for any size of business, whether you’re looking for startup capital or you’re considering growth via a VC or Angel investment approach. IP rights are assets that can add value to your business and a brand protection strategy should be seen as a long-term investment in your business.