Protecting your brand – the expert view

By Mike Harrington 19-Dec-2016

Counterfeiting, failing to register IP, illegal claims and low quality testing can all impact your brand. The SCS hosted a lively and absorbing debate on protecting brands at the Royal Society of Chemistry, central London in December. This is an article from SPC magazine. Learn more

Ethics are just one issue affecting a brand

Brand protection is a vital topic. There are many ways a brand can be strangled before it gets critical presence in the market. It is also easier to damage a brand than to grow and nurture it. So having a good understanding of the issues is crucial.

The Society of Cosmetic Scientists hosted this debate. Experts arranged at the top table included Jack Ferguson (representing Clearcast), Ed Carstairs (Patent and Trademark Attorney), Emma Meredith (scientific lead for the CTPA), Jason Matthews (regulatory at the Body Shop), Carol Treasure (founder XcellR8) and Stewart Long (CEO Cutest).

Additionally, a feature of the SCS membership is that all members are experts themselves. So in reality it was a room full of experts, quality debate and some excellent mince pies.

Consumer thinking

The majority of consumers don't know and don't care about how their cosmetics are tested. Carol Treasure (XCellR8)

Let's start with the consumer: what do they think about brands and their ethical and scientific stand points? The meeting was shown evidence that the majority of consumers don't really know about it... and don't care. Next came the 'don't know, do cares' and the very smallest group was the 'do know, do care'. Consumers care about the latest trends and the perceived efficacy of the product. They also want it to be safe. Indeed European legislation (Cosmetic Regulation 1223/2009) provides protection here and theoretically all cosmetic products on sale in the European Union are safe.

Product safety testing

All products require testing

However, many cosmetics brand owners just want cheap when it comes to testing. Reputable testing companies will advise against this approach, however some brand owners see this as an expensive cost and will seek the cheapest options. Larger companies should know the false economy here where a product may cause consumer issues and effectively destroy the brand.

Cosmetics made or sold in the EU have been free from animal testing for some time. This includes the ingredients. However, the conflict with REACH on shared use applications can still occur and has not been fully resolved. But is it really damaging or a confusion for the consumer to claim this on the packaging? The EU thinks so, but Jason Mathews (The Body Shop) does not.

Brand strategies

Jason Mathews provided insight into how The Body Shop considers and protects its brands. All brands carry and reflect the company's values. Now the Body Shop is now an iconic brand in its own right. Its subsidiary brands can equally enhance or damage the main brand so consistency with core brand values is essential. Constant vigilance for counterfeit and divergent products is required and new offenders appear with relentless enthusiasm.

Once again, considering all aspects of the product from its image, ethical stance, safety and sustainable sourcing can create the core values of a company such as The ody Shop. Ensuring these are communicated positively is essential.

Claims and labelling

As Jack Ferguson pointed out, you cannot claim a legal obligation. So, for instance, saying a product is free from an illegal chemical doesn't help and causes confusion in the consumer's mind. All agreed that claims, labelling and marketing material should highlight product and brand positives.

Free-from claims are quite often used by even big brands. Most felt this was a negative and created an undercurrent of suspicion with consumers. It leaves hanging the question, "okay, well if it's 'free-from' that what else does it have that I might not like?"

Jason Matthews defended the use of ethical statements which are central to The Body Shop's central brand image and values. Against animal testing has been central to its cause since Anita (Roddick) ran the company. However, the more contentious free-from claim needs to be used within a context.

Six common criteria for cosmetics claims Legal, True, Evidence, Honest, Fair, Informed. European Union legislation

It was also pointed out by several present that the EU is reissuing its guidance on common criteria. However, even the EU is still conflicted on this issue. It allows products to use 'free-from' where choice is needed based on allergic sensitivities, but not where it conflicts with the fairness principle where claiming it to be 'free-from' a legally permitted chemical, such as parabens, is regarded as wrong.

Infographic: European Union

While the regulation 1223/2009 has been in force for a few years now, it is worth pointing out that seven amendments and clarifications have been issued in 2016 alone.

Intellectual Property registration & protection

There are two types of protection: registered and unregistered. Registered includes patents, trade marks and designs. Unregistered includes copyright, which could include the marketing story and even the way ingredients are listed on labels and packaging. In terms of protecting your brand registered IP is much easier to defend and use to develop and protect your brand.

Patents can be an expensive way of telling your competitors about your product. Ed Carstairs

Patents, trademarks and registered designs for packaging and copyright can all play a part. This was laid out by Ed Carstairs, who pointed out that patent protection was expensive and important for inventions that showed a clear scientific advantage. However, for small brands it may well be the thing that holds them back if money is an issue.

Copycat stores spring up all the time especially in China

More value was to be had by protecting the name early to ensure a unique position in the brand landscape. Registering the name also carries the added benefit that a full search will provide some comfort that you are legally free to use the name. But it is a judgment call, many start up businesses do not know which bits of their intellectual property will turn out to be valuable and unique to their success and certainly the counterfeiters really only target the successful brands who already have protection. Here the protection helps them fight and close down these illegal traders.

Collective positive values

All agreed the need for a common positive way forward for cosmetics if brands were not be collectively tarnished. Despite the EU's umbrella legislation aimed at protecting the consumer it is not straightforward. Consumers may not care. On top of that, there are many amateurs and very small operators who either ignore the legislation or don't even know of its existence. But are we really going to close down every farmer's market?

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