It‘s that time of year again – while future customers are sunning themselves on the beach, the toy industry elves are indoors busily preparing for the Christmas rush. Only time will tell what the must have toys will be, however one certainty is that the industry should protect the IP in products to protect the retail business. It‘s no secret that every year, cheaply made imitations damage the reputation of the Industry, endanger the safety of users and adversely affect your bottom line. Therefore, the law of IP should be used as an effective tool to protect your brand.
The Brand
Firstly, the Brand. This is more than a name – it is a badge of quality linked to your product and business. If the name, and accompanying logo, is distinctive, non-descriptive nor misleading, a trade mark can be registered on a national, EU or international basis. Provided that registration fees are paid, you will have a monopoly right to use the name and logo in relation to your products. Meaning that action can be taken against a counterfeiter which could lead to an award of damages, an account for profits and delivery up of counterfeit products.
The Product
Secondly, the Product. If it is new and has its own character, it may be capable of being protected by design right (registered or unregistered) depending upon the elements of the product. This protects the look of products – both 3D and 2D. Again, such rights will allow you to bring an action against the counterfeiter. Copyright may also protect aspects of the product, (e.g. artwork), and is an important right (with no need to register) however its use within this industry is often limited.
Patents are a useful tool. If the product is novel, involves an inventive step and is capable of industrial application, you should consider making a patent application. If successful, you will have an exclusive right to exploit your invention for up to 20 years. That said, the process is often costly and lengthy. Due to the rigorous application process, many toys are incapable of patent protection and therefore early expert advice should be sought prior to embarking upon this expensive process.
In summary, protect your brand and product (if possible) by use of the various laws of IP which have been established to aid the fight against counterfeiters. Don‘t let the elves work in vain, use IP law (and your lawyer) to protect the toils of their labour.
