I Own a Cosmetic Brand. How Can I Protect My Intellectual Property?

George Raptis

• 20 July 2021
• 21 July 2021
• 6 min read

Given the time and effort it takes to build a cosmetic brand, it would be a good idea to start protecting your intellectual property. Without legal protection, you risk exposing your brand to being copied by other competitors in the cosmetics industry. This article outlines: 

• the key functions of trade marks and patents; and
• how both forms of intellectual property can widely benefit your business

to help you decide which forms of intellectual property protection are suitable for your cosmetics brand.

Trade Mark Your Brand 

One of the most important ways that you can protect your cosmetic brand is by registering a trade mark. A registered trade mark will provide you with the exclusive right to use, licence and sell their mark. An exclusive right means that no one can use or misappropriate your trade mark without your permission. 

Trade marks are typically registered with respect to the features of your brand that make it distinguishable, like a business name, logo or slogan. As a cosmetics brand, you can also trade mark the distinctive packaging of your products and their distinctive scent. 

Whilst there are many benefits to protecting your cosmetic brand through trade marks, the table below summarises the three main reasons why you can benefit from having your brand protected by trade marks. 

Trade Mark Registration 

You should be aware that Australian law recognises both registered and unregistered trade marks. However, the law only recognises unregistered trade marks if: 

• you can establish that your products have accrued a sufficient reputation in the market; and 
• your mark is sufficiently recognisable by consumers as your cosmetics brand.

To avoid having to prove this, you can apply for a registered trade mark. Therefore, once IP Australia approves your application, you can readily enjoy 10 years of trade mark protection. 

This protection gives you the exclusive rights to use, licence and sell your mark as expressed above. 

You must apply for a registered trade mark via IP Australia’s online services. You can either apply using a standard form or a TM Headstart application. 

Standard Form Application

Using a standard form, you must provide:

• your personal information; 
• a description of your cosmetics brand that your trade mark will protect, i.e. your business name or logo; 
• the type of trade mark you are applying for; 
• certification that you have conducted a trade mark check to ensure that someone else has not already registered your intended mark; and
• the class of services that your trade mark will apply to, i.e. class 3 on the Trade Mark Classification Search includes most cosmetics products. 

TM Headstart Application

Under a TM Headstart application, you will still need to complete all the formal requirements of a standard application. In addition to this, a trade mark expert will provide you with a pre-assessment of your application before it is formally submitted for IP Australia’s review. This way, you can have an expert identify any potential errors in your application and make amendments accordingly. You must follow the registration process closely to avoid further costs for mistakes made in your application.

Patent Your Product Formula 

Beyond protecting your brand image, you should also consider applying for a patent to protect your product formulas. A patent is a type of intellectual property that gives its owner a legally enforceable right to exclude others from making, using or selling their innovative device or process. 

Whilst a patent does not protect your product in its packaged form, it does protect the formula used to create the product. 

However, depending on your budget, a patent is not always necessary. There are other ways you can protect your formula, such as making employees sign a non-disclosure agreement to prevent them from leaking the specifics of the formula. If you do decide to patent your cosmetic product formula, the main benefits involved in registering a patent are summarised in the table below. 

Patent Registration 

You must file a standard patent with IP Australia. You may find in your research that there are two different types of patent options (standard and innovative). However, innovative patents will no longer be issued after 25 August 2021. In your patent application to IP Australia, your formula must satisfy certain standards to qualify for protection. These standards require your cosmetic formula to be:

• original, meaning the formula is different from existing cosmetic formulas; 
• an inventive step in its manufacturing, meaning it is not an obvious thing to do for someone experienced in the cosmetics industry; and
• able to be manufactured or used in the cosmetics industry. 

Key Takeaways 

You can protect the intellectual property in your cosmetics business by applying for a: 

• trade mark to protect your brand; and
• patent to protect your product formulas. 

Before you consider either form of intellectual property protection, you should consider its benefits and whether they are suited to your cosmetic brand business model. If you need help with protecting your intellectual property by applying for a trade mark, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page. 

Frequently Asked Questions