6 Things to Consider When Selecting and Protecting the Name of a Skincare Product

March 1st, 2019 by

6 Things to Consider When Selecting and Protecting the Name of a Skincare Product

The health and beauty industry is booming, with skincare products seeing the biggest growth in recent years.  This year alone, global sales of skincare products are expected to exceed $130 billion dollars.  This means that not only is their demand for new skincare products, there is also plenty of competition in the market.  To be successful, it is essential that you stand out from the rest.  Consider the following points as you select and protect the name of your skincare product.

Pick a Name that Reflects Your Skincare Product’s Business Plan

You’ve likely developed your skincare product because you feel you have something unique to offer health and beauty consumers.  Choose a name and logo that are as unique as the product itself.  Leave descriptive words for your advertising copy, not your name.  Instead, opt for arbitrary or fanciful marks.  Arbitrary marks include commonly used wording that has no direct relation to the product.  An example of an arbitrary mark in the health and beauty industry is Dove.  Both the name and logo are now associated with soaps and lotions, not just birds.  Fanciful marks are invented terms with no relation to the products.  Revlon is an example of a fanciful trademark.  The more unique and inventive your trademark, the less likely another business is to infringe upon it.

Your trademark is often the first interaction you have with potential customers.  As you develop your brand, you’ll begin by choosing a name that represents your products.  Next, you’ll need to design the look of your trademark.  A distinct style and color for your name are almost as important as the name itself.  You will probably also consider creating a logo or design for your skincare product.  Because the impression your trademark gives is so important to your brand, work with a graphic design professional to get the right look for your product and business.

Complete a Comprehensive Trademark Search

Once you’ve come up with the perfect name, the next step is to complete a comprehensive trademark search.  If your name should happen to infringe on another business, it is best to learn this in the early stages of your business plan.  Before you design and order packaging, create a website, or purchase marketing materials, you’ll want to know that you aren’t infringing on another business’s mark.  Moving forward without conducting a trademark search could cost you both time and money in the future, as any business that began using the mark prior to you can enforce their legal rights and ask you to stop your use of the trademark.

To ensure that your trademark search reveals all potential matches, it is best to work with an experienced trademark attorney.  While many do-it-yourself legal websites advertise trademark services, including how to perform trademark searches, your results may not be thorough and could be a costly mistake.  Typically, trademark disputes do not arise from exact matches, but rather from similar marks, which may be considered to cause a likelihood of confusion.  Basic trademark searches will only alert you to exact matches.  Trademark attorneys use a much more comprehensive tool, and once the search is completed, you should feel confident in knowing that your mark will not infringe on the trademark of any other existing business.

File Your Trademark Application

After a comprehensive trademark search has been conducted, you should begin the process to register your trademark with the United States Patent and Trademark Office, or USPTO.  Simply putting your trademark to use, without it being registered, does grant you some common law rights to the mark.  Unfortunately, those rights are extremely limited.  The name of your skincare product may be protected locally, but your mark will not be protected if someone in another region begins using the mark.  You may also be restricted from expanding to another area where the mark is already in use by another business.  To get the maximum protection of your trademark offered under federal law, you must register with the USPTO.

Many business owners complete a trademark search but then wait to register their mark until they have a more established business.  It is important to register your mark with the USPTO as soon as possible, as the date you file becomes your federal priority date.  This means that no other business or individual will be able to register a confusingly similar mark after this date.  Delaying your trademark registration could lead to costly trademark disputes in the future if another business or individual beats you to the trademark office with a similar mark.

Create Brand Guidelines

Whether this is your first time creating a product or you’re adding to an existing line of products, it’s never too early to start establishing your brand.  Once customers buy into a health or beauty product, they will keep coming back, as you grow and expand your business, looking for your next great lotion or cleanser.  A loyal customer base is essential to success, and strong brand recognition is the key to loyal customers.

When you receive approval from the USPTO for your trademark, it is a good idea to create brand guidelines to control the use of the mark.  Brand guidelines detail how and where your trademark can be used.  They serve to educate employees, retail partners, vendors, and manufacturers on the use of your mark, including the approved color palette, font, and logo options, as well as the tone or style of any writing or marketing pieces.  Consistency creates brand recognition and adds an additional layer of trademark protection.  If a product does show up with a similar trademark in the future, the brand recognition you’ve developed with your customer base will help to dissolve confusion.

Stay Vigilant

While the USPTO registers the trademark, it is not their responsibility to enforce the exclusivity of its use.  To protect your trademark, you must actively monitor and police it.  Once your trademark has been registered, begin using the ® symbol.  This will provide public notice that this trademark is registered and protected.  This symbol should be included everywhere your trademark is seen, from

product packaging to signage and tee shirts.  Use of ® is enough to dissuade most businesses and individuals from infringing on your mark.

Unfortunately, some people may still choose to knowingly use your trademark for their gain.  To maintain control of your mark, actively monitor its use.  Some software programs and online alert systems can help you to determine if your mark is being used without authorization.  Many trademark attorneys will also assist with monitoring.  As a trademark owner, you have legal protection, and it’s essential to assert that protection.  Often, all that is needed to put an infringer on notice is a cease-and-desist letter, but working with a trademark attorney will help you know which action is needed to protect your skincare product from infringement.

Maintain Your Trademark

Your trademark protections will never expire, as long as you continue to offer the goods or services associated with it.  Be consistent with the use of your mark, using the same design, logo, and name as they appear in the original registration.  Inconsistent use of your mark can weaken its protections and put you at a disadvantage during future trademark disputes.  Documentation of continued use will also be needed in renewal filings.

The USPTO will not alert you when your renewal date approaches, but it is critical to meet these deadlines.  Your first renewal will occur between the fifth and sixth year of use, and the following renewal date will be set between the ninth and tenth year.  After that, you will file for renewal every ten years to continue to protect your trademark.  As a trademark owner, the responsibility to renew is yours, and if your deadline is missed, the USPTO may cancel the registered status of your trademark.

Conclusion

Standing out among the competition in the skincare industry may not be as difficult as it sounds.  From selecting a name and establishing brand guidelines, to registering your trademark and monitoring unauthorized use, you can protect your brand and attract loyal customers.  Whether you have an idea for a new eye cream or you plan to develop an entire line of moisturizers, consider beginning the process to register your trademark today.

Bio:

Founder of U.S. based Gerben Law Firm, PLLC, Josh Gerben is a trademark attorney whose trademark law firm has secured over 4,000 trademarks for clients since 2008; including international filings. Josh Gerben has been featured in a variety of national news outlets including FOX News, NPR, Huffington Post, and The Wall Street Journal.

GERBEN Law Firm

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