James Flynn Discusses Intellectual Property for Skincare Brands: What You Need to Know

Create Your Skincare

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, discusses the key issues skincare brands need to know about intellectual property when launching and protecting their products, including their recipes, formulas, and techniques. In this Q&A discussion, Mr. Flynn speaks with Rachel Pontillo of Create Your Skincare. Ms. Pontillo is a multi-disciplinary functional nutrition practitioner, AADP and IAHC Board Certified International Health Coach, licensed aesthetician, herbalist, and skincare formulator and educator.

Following is an excerpt:

You’ve spent months, maybe even years, developing your skincare line and you’re finally ready to launch. Congratulations! Or maybe you’re just getting started on your dream skincare brand. Wherever you are in your skincare business journey, it’s important that you know what intellectual property (IP) is and how it pertains to your business. While learning about intellectual property for skincare brands might not seem as fun as choosing herbs, or mixing up the magic, if you don’t protect your IP, your business could suffer for it.

I am not a lawyer, so I decided to interview one of the best IP lawyers in the business, Jim Flynn, about what skincare businesses (especially new and small ones) need to know about IP.

What laws protect intellectual property (IP)?

Intellectual Property (IP) law protects the original creations from any company or individual who owns them against infringement by others. Intellectual property laws are in place so that people can use their ideas without fear of someone taking those ideas and profiting off of them with no compensation back to the originator.

Here’s my complete interview with Jim Flynn about intellectual property for skincare businesses

Rachael Pontillo: What types of intellectual property protection are actually available to skincare formulators? Is there a way to protect their actual recipes/formulas? Techniques? Or is it more the brand itself?

Jim Flynn: There are four basic types of intellectual property available to all business: patent, copyright, trademark (including trade dress), and trade secret.

Though it is a bit of an over-simplication, patents can protect your product or the process for making it or using it. Copyright can protect what you say about your product, and trademark protects what you call your product or how you package it. Trade secrets can apply many of those aspects as well as your customer information, financial data and other knowledge that you have.

As far as protecting the actual formulations and techniques, patent and trade secrets can protect those directly.  But trademark and trade dress are the ways of protecting the brand itself.

Rachael Pontillo: What are the biggest mistakes that new small skincare owners make in terms of intellectual property?

Jim Flynn: The biggest mistake that small or start up skincare owners make is assuming that they can do what they are doing and that others can’t copy it.

That applies to both the names that one uses and the formulas/techniques one employs.

On the name side, people assume that they can use any name that they come up and have never heard of before, or because a particular URL is available. However, there may already be others out there already using that name–or something confusingly similar–and the same business or some similar line of business may have superior trademark rights through earlier registration or use.

The newcomer who doesn’t check trademark records or other resources beyond domain names then winds up investing time and money investing in packaging, signs, websites and other things that later causing them a problem when the brand with superior trademark rights challenges them.

On flip side, as to techniques and formulas, newcomers assume that new products or processes that they come up with are automatically theirs, and can’t be copied. But skincare is a pretty public thing in how you apply it to customers, explain it to them, and advertise its advantages. If those things are not patented, or if you don’t take steps to protect them as trade secrets, then others are free in most cases to copy them, or reverse engineer them.