Branding is the watchword in candy marketing, and brand building is as much art as science. Consider York Peppermint Pattie as an example – the underlying message is cool peppermint flavor, its positioning is unique among chocolates and the “Get the Sensation” tagline says it all. Even the icy silver product packaging plays on the brand’s core values.How do you replicate York’s success? Creating an enduring brand starts with proper positioning and the correct identification of message. Name creation and packaging follow, often supported by a logo or tagline. Finally, marketing and advertising efforts must complement and promote the brand.

If you are successful, your competitors will undoubtedly attempt to capitalize on your market share. What can you do to keep the hungry wolves at bay? Shroud your brand in the cloak of intellectual property law and surround it with a shield of protection. Product names, logos, slogans, configurations and packaging are vital components in successful branding. Safeguarding your ownership helps ensure continued viability in the marketplace.

 Since your product’s name is the backbone of a successful brand, name creation and trademark clearance is the first crucial step. In the global economy, it is important to find a name that is available in all markets and which translates favorably across all languages. Coined or fanciful terms such as Twix receive the strongest level of protection under the law followed by arbitrary marks such as Snickers.  Further down the continuum are suggestive marks such as Crunch, while generic marks such as Peanut Butter Cups are not protectable. Borderline descriptive marks, such as Raisinets, may be difficult to both register and enforce. Since trademarks function on three levels, we recommend searching on all of these. Further, the search should be accompanied by a legal opinion. The attorney preparing the report should examine whether the trademark is so closely related to another in sound, appearance or commercial connotation that it might confuse consumers. If so, registration could be denied and trademark infringement litigation could be forthcoming. Similarly, searches should be conducted for all logos, slogans, and even packaging or trade dress associated with the product. Due to recent changes in the law, design patent protection might now be your best means of protecting product configurations.

Product configurations might be enforceable through design patent protection if they can be considered new, original and ornamental. Furthermore, there must be no conflicting prior art and no more than twelve months may have passed since the product’s first public disclosure. If the mark is being used in commerce, typically through sales activity across state lines, a use-based trademark application may be filed. If the mark has not yet been used, file an Intent-to-Use application. Six to eight months after the Intent-to-Use filing, a Notice of Allowance will be issued, triggering a six-month window to file either a Statement of Use alleging use in commerce, or a Request for an Extension of Time. Four six month extensions may be filed.

Successful trademark protection and registration involves the proper depiction of the mark as it is to be registered, the correct designation of first use dates, an appropriate recitation of goods, the careful selection of specimens of use, and myriad other details best handled by an experienced trademark attorney.

Without a protection strategy in place, your brand is vulnerable to infringement, weakening its market position and undermining your branding efforts Safeguard your product attributes with a roar, cultivate your brand, and prosper.

Originally published in Candy Business Magazine