Intellectual Property and Branding for Nutraceuticals

“A brand is the set of expectations, memories, stories and relationships that, taken together, account for a consumer’s decision to choose one product or service over another. If the consumer … doesn’t pay a premium, make a selection or spread the word, then no brand value exists for that consumer."—Seth Godin, entrepreneur, Dec. 13, 2009

Intellectual property (IP) is often thought of solely as the exclusionary rights it provides to its owners. Traditionally, patents and trade secrets protect inventions; trademarks protect brands; and copyrights protect creative works such as literature, art and music. However, IP can provide value as part of the branding strategy for nutraceutical products, not only for its exclusionary power, but as a product differentiator in a crowded market. IP can contribute to branding a nutraceutical product by presenting a story and expectation of uniqueness, authenticity and exclusivity to obtain premium value for the product.

Trademarks are the traditional form of IP associated with branding. The purpose of trademarks is to protect consumers from being confused by similar products of varying quality. Trademarks also protect brand owners by ensuring that they alone reap the benefit of the equity they developed in a brand.

To register a trademark, the owner must show its trademark is not confusingly like a pre-existing trademark, and its trademark is distinctive from the name of the goods or services with which it is used. In other words, a trademark registration is indicative of a unique name for a product that must stand out in a crowd. As part of the branding strategy, the trademark owner should choose a distinctive and creative name for its product if they want a strong trademark that can be registered, while at the same time communicate the story associated with the brand. If a trademark owner chooses a descriptive trademark, it can promote the brand to acquire distinctiveness by demonstrating that consumers associate the trademark with their specific goods and services.

Once a trademark is obtained, the trademark owner should pro-actively maximize its reach and scope as part of the branding strategy. Trademarks are registered only about the goods or services with which they are used. Part of a successful branding strategy will be to expand a valuable trademark into new products, thereby associating consumer loyalty to the brand with new products. In this way, the trademark can tell the story of a growing brand that begins as one beloved product and turns into an entire product line. Not only does this build on the previous investment in the brand, but builds on the consumer expectations of a successful product. Using the trademark to allow consumers to easily discuss the brand promotes the expansion of the brand through social media and can improve engagement with the natural audience for the product.

In addition to trademarks, there are several creative ways in which patents may be incorporated into an overall brand strategy. Patents are granted based on new and inventive products, processes or methods of use. Nutraceutical inventions often are the result of extensive investment in research and development (R&D) directed to the improvement of human health and well-being. A granted patent is the symbol of this R&D investment and contributes to the story of a company as an innovative leader that provides premium products.

Consumers are not only looking for innovative products, but one-of-a-kind products as well. Patents are granted on inventions that are distinguishable from other products available in the market and the literature. Thus, patents also serve as an indicator of a unique product that can only be sourced from the patent owner. For consumers willing to pay a premium for a unique experience, a patent is an unambiguous indicator that a product is considered unique among the competition. The symbol of this uniqueness is the designation of “patented" on a product label, readily differentiating the product from its competitors.

Finally, patents provide incentive for companies to publish their innovations rather than protect them as trade secrets. Protecting nutraceutical products and processes as trade secrets may no longer be viable based on the transparency demanded by new clean label requirements. Patents solve this problem by allowing for the publication of ingredients, formulations and processes, without the fear of misappropriation of the R&D behind the successful clean label product. In this way, patents can be used in a branding strategy directed to innovation, transparency and authenticity.

IP can play an important role in branding a nutraceutical product by telling the story of a brand as distinctive, innovative, transparent and authentic. Brand owners should make sure to integrate their IP strategy with their branding.

Hear Andreas Baltatzis preview the session by listening to SupplySide West Podcast 24: Patents and Trademarks Beyond IP Protection.

Learn more about how IP helps branding from Andreas Baltatzis during the Navigating the Business of the Nutraceutical Industry panel discussion on Thursday, Sept. 28 at 9:00 a.m. at SupplySide West in Las Vegas.

Attorney Andreas Baltatzis is a director at KramerAmado PC (krameramado.com), a boutique law firm specializing in intellectual property (IP). He represents a number of innovative nutritional supplement and nutraceutical companies that improve people’s lives every day. Baltatzis also helps companies prepare and implement IP strategies by obtaining patents and trademarks that protect their innovations and cash flow, as well as advising clients on successfully launching new products and brands.