Life Sciences Legal A to Z - B is for Brand Protection

Life Sciences Legal A to Z - B is for Brand Protection

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When considering which intellectual property rights are important to businesses in the life sciences industry, it is likely that patents and confidential information will be top of the list.  Clearly, these can be vital as a basis for a life sciences business and provide a crucial competitive edge in the market.  However, in this extremely crowded sector, where companies of all sizes compete for space, custom and talent, having a clear and recognisable brand identity can be equally as important. 

The brand built and maintained by a life sciences organisation is vital both for its overall business as well as for its individual products, particularly where there is likely to be competition from others in the market place.  A carefully considered brand strategy can help to ensure that individuals and businesses feel confident in buying from, investing in and working with a particular company. 

Defining what the term “brand” actually means can be quite difficult, as brands are generally comprised of several elements, which are variously tangible and intangible. For example, while a memorable name and recognisable logo might seem, on the face of it, to be the definitive components of a strong brand, it is crucial not to overlook the importance of less perceptible elements, such as the organisation’s purpose, values and “personality”. Together, these aspects assist consumers in shaping their perception of, and loyalty to, a certain brand.

Once a company has built up a strong brand identity, it should seek to protect it. Registration of certain rights is a key aspect of brand protection.  In particular, registering a company name, a product name or a logo as a trade mark in the relevant jurisdictions provides its owner with a monopoly right, which can be protected and asserted more easily than, say, goodwill or reputation.  However, applicants hoping to register colour marks may face difficulties – GSK’s EU trade mark for the colour purple, used on its asthma inhalers, was revoked in a recent case. In addition, it is also advisable to consider whether registration of any designs (such as the shape of a product) might be appropriate.

Complex rules apply to the naming of drugs. Numerous factors need to be considered in the choice of branding including, for example, that a name must not be easily confused with an existing drug and it must not convey misleading therapeutic and/or pharmaceutical connotations. Pharmaceutical marketing and branding teams should therefore work closely with legal and regulatory advisors from an early stage to minimise the risk of problems arising later.

There are various options available to organisations looking to strengthen their brand protection strategy in the long term. For example, it may be worthwhile to invest in a trade mark watch service in relation to any registered marks held, which will reveal any registration applications for identical and/or similar trade marks that may be of concern.  In addition, using online monitoring services to search for, among other things, counterfeit goods on offer for sale to the public. Once flagged, organisations should take appropriate steps to oppose any such application, or remove any websites selling infringing products, in order to maintain the company’s reputation, goodwill and, in turn, its brand.

Regulatory issues can arise where, for example, medicines or other products are offered for sale without authorisation via online platforms in jurisdictions where no marketing authorisation is held. This holds a number of concerns for the brand owner and trade mark infringement (in either the company name or logo, or the product name) could be a tool for shutting down such sales.

Ensuring a consistent approach to building and maintaining a well-articulated and recognisable brand will back up all the hard work and investment in the business’s products and help to promote them further. For companies operating in the highly competitive life sciences industry, even a modest amount of time invested in protecting these brands can pay dividends in the long term.

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