Protecting consumer products can be one of the most fun aspects of being an IP attorney. Consumer products reach the widest customer base and, therefore, are often the most relatable products for friends and family to understand the work of an IP attorney. As an added benefit, clients’ consumer products make the best office accessories. My office currently includes a client’s innovative record player, an award winning board game, a silicone coffee cup, and more.
Consumer products can embody intellectual property across any and all of the four IP regimes: patents for securing the exclusive rights to your inventions; trade secrets for protecting the confidential know-how underlying your processes and techniques that can’t be reverse engineered from the customer facing products; copyrights for your written protocols, as well as the creative manner in which you present your innovation to the world through your website, videos, and other marketing materials; and trademarks protecting the branding (e.g., the names, logos, and taglines) that ties each of the previous assets into a valuable business.
It can be important in consumer product development to assess the patent landscape early in the R&D process so as to more strategically focus your efforts in innovation and development. Patent searching can be a valuable tool at this stage; a patentability search or patent landscape search can be used to evaluate whether there is white space to innovate a protectable invention in the space; a freedom to operate search can help identify potential infringement issues and help guide the design process to avoid patent infringement. Alternatively, with some consumer products, the path to market is so quick and (relatively) painless, that searching may be less important than simply getting to market.
Once the path is set, and the consumer product is being developed, ownership of the product is claimed by preparing and filing patent applications. When the patents issue, they provide the owner the ability to prevent others from making, using, or selling the patented invention by granting the exclusive rights to the invention to the patent owner. This can be especially important for products for which the path to market is long and expensive, as can be the case with more complex consumer products. When the inventor has a tough path to market, without patent protection securing the rights when the innovation finally starts to pay off, there may not be adequate incentive to bring the product to market at all. If a copycat can quickly ride your coattails after you prove there is a valuable market, you are putting yourself at a competitive disadvantage without patent protection.
When used correctly, the patents provide exclusive rights in the innovation that help to provide a competitive advantage in the marketplace. As discussed more below, that competitive advantage is used to help build the value in the trademarks that protect the business.
For inventions that are based on, or that incorporate subject matter that is difficult to reverse engineer, trade secret protection is an alternative, and sometimes preferred, mechanism for IP protection. Like patents above, the protection offered by trade secret protection can provide exclusive rights in the innovation that help to provide a competitive advantage and build the value in the trademarks.
There is no registration process for trade secrets, you simply need to maintain the confidentiality of the secret. Using non-disclosure agreements and other confidentiality measures can be helpful in demonstrating the efforts you’ve taken to maintain the confidentiality of a trade secret, but the real key is that trade secret protection is only effective for inventions that competitors won’t be able to figure out based on the public facing aspects of your product and business. And that’s your competitive advantage; if they can’t figure it out, they can’t copy it.
In consumer products, it is uncommon for trade secrets to be as important as the patents. It is often the case that consumer products can be reverse engineered, the innovation being plain to see to the customer and to each competitor. But there are notable exceptions. In fact, one of the most famous trade secrets, the Coke formula, is also one of the most famous consumer products.
Copyrights protect original works of authorship fixed in tangible media. In consumer products, copyrights are most often used to protect the ancillary materials accompanying your product, the marketing materials, the instructions, videos, etc.
Although the registration process is not nearly as complex as either the patent or trademark registration processes, it can be helpful to work with an experienced IP attorney to protect your copyrightable materials.
Branding is important anytime a business is selling differentiated goods and services. In consumer product businesses, the company’s name is almost always its most important IP asset. The name is how the brand is recognized and the asset that will hold the value of the trust and admiration earned from the customers and the public. But trademarks are implicated in each name, logo, and tagline you bring to market. With each of those marks, it is important to avoid infringing others’ trademark rights through trademark searches and opinions and developing rights in distinctive marks yourself by registering trademarks.
In the long run, the business’s trademarks are often their most valuable IP assets. However, trademarks take time and effort to develop recognition and goodwill in the marketplace. In order to have the space in the marketplace to build that goodwill, the patents and trade secrets need to hold competitors from copying your unique offerings and enable you to build your brand. This is one of many reasons it is important to strategically build a coordinated and thoughtful trademark strategy from the outset of the business or product launch.
RPL’s attorneys have a long track record of protecting consumer products. We’ve protected consumer products related to art supplies, audio equipment, beauty products, children’s products, clothing, consumer electronics, food and beverages, furniture and housewares, games and toys, health and exercise equipment, luggage, music and musical instruments, outdoor and adventure gear, pet products, recreational and sporting equipment, virtual reality, and beyond. RPL attorneys love to protect the businesses making the products we love to use.