1. Intellectual property protection
As an FMCG business leader or business owner, the FMCG law is one of the most important factors in the success of your business.
You may have probably already seen the cheap knock-offs in the dollar store of products that are designed to look a lot like popular culture brands – transforming toys that aren’t quite “Transformers” or “Space Wars” ships and aliens that remind you of a popular movie series. The same goes for marketing on everyday products and goods like drinks, vitamins, beauty care…the lot!
This practice is so rampant in marketing for counterfeit FMCG products that it’s pretty common for children’s products (e.g. shampoos, lollies, and candy) to have characters that look oddly familiar, printed on their marketing labels. Some of the companies that usually do this are foreign companies that are pushing or perhaps even exceeding the boundaries of the law and the grey area of what some may consider counterfeits or breaches of trademark. Others are companies that know exactly what they can get away with.
Some small business owners are cunning and have derivative works that are either “inspired” by a popular culture phenomenon, or a tribute to it. They can often get away with this simply because they are too small for the bigger FMCG brands to care …. or they just slip under the radar. If you’re just Starting Up, we definitely recommend that you don’t do this.
Cover yourself and your FMCG brand
When you start bulk manufacturing goods and Starting To Build Brand Identity, you need to tread more carefully with how you market your product and take advantage of pop culture phenomena, otherwise, you might receive a nasty cease and desist from the proprietor of the intellectual property (IP) you were using to market your product. You may be inadvertently breaching IP and infringing an existing trademark or copyright and can potentially get involved in unwanted Court Proceedings!
If you really do want to do something in tribute to a show, artist, celebrity, film or in other areas that you’re a fan of as part of your new marketing campaign, we suggest you get Legal Advice. Sometimes you can do it, sometimes you can’t, and it will be dependent on each case.
Sometimes, it’s better to contact the owner of the IP and try to do things the right way. You would be surprised at how flexible some of those companies or creatives are when they believe that the organisation behind the FMCG brand is willing to work with them in good faith especially if they are Guided Commercially - particularly where there is an opportunity to collaborate or provide a further offering e.g. licensing opportunities.
Photo by Fancycrave on Unsplash
This is another side of the FMCG law that you need to be aware of. Licensing opportunities are mutually beneficial for both the FMCG brand and the creative (IP proprietor) who owns an IP such as copyright. We can guide FMCGs and creatives and assist them to govern their relationship through a licence agreement where a creative can ‘licence’ their IP to the FMCG for branding and marketing purposes.
A licensing agreement is essentially a contract from one party (usually the creative or IP proprietor) authorising another party (let’s say the FMCG company) to use or borrow its IP for certain purposes like branding or marketing.
Both the FMCG company and the creative can mutually benefit from exposure to the market and the respective consumers or audiences (which are really one and the same), whilst the creative or IP proprietor can earn licence fees and the FMCG won’t be exposed to an infringement suit or PR disaster!
Cover yourself and your FMCG brand
- No shortcuts – don’t infringe on others’ intellectual property for marketing or branding purposes.
- If you’re ramping up your marketing and want to take advantage of existing pop culture IP, approach the creative or IP proprietor.
- Collaborate and establish a licensing arrangement!
- Lawfully market your FMCG with the IP of creatives.
- Cross-over of marketing and mutually benefit in the exposure to wider audiences and consumers!
- Hire a Competent Commercial Lawyer to have your back covered
If you need legal assistance for your FMCG, Lazarus Legal and our awesome team of lawyers and flexible legal advisors are on tap to assist. Call 02 8644 6000 or contact us to see how we can help you Rise Above “the Competition”
Mark Lazarus
Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.
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