Claim Support & Trademark Law
With so many cosmetic products out there on the market, everyone has to use special design, marketing tactics and clever advertising to gain the consumer’s attention. Advertising claims have a decisive influence on the buying behaviour of consumers. To protect the consumer, there are laws on what claims are allowed to be made and what not.
But this protection is not reserved for the consumer only; it applies equally to the producer, one form being trademark law, which offers protection against unwanted imitations!
The EU “Claim Regulation” (No. 655/2013) has been in force, laying down criteria for advertising claims, since July 2013. Specifically, a “compliant” claim satisfies the following six criteria:
- Legal compliance
- Evidential support
- Informed decision-making
There is never-ending debate centred around the infamous “free from” claims, for example. This short wording is a source of many critical advertising claims. Help for developing compliant claims exists in the form of recommendations from the Workgroup of the EU Cosmetics Commission, which published its “Technical document on cosmetic claims” in July 2017 (1). Applying the six criteria above, the document gives examples of compliant and non-compliant claims.
Here are just a few examples from this document:
- The claim “free from corticosteroids” is not allowed, as corticosteroids are banned by EU cosmetics legislation. –> Legal compliance!
- The claim “free from formaldehyde” is not allowed if the product contains a formaldehyde-releasing ingredient (e.g. diazolidinyl urea). –> Truthfulness!
- The claim “low in allergens because without preservatives” is unfair and therefore not recommended, because it implies that all preservatives are allergenic. –> Fairness!
- The claim “free from alcohol” is welcomed, for example, if claimed on a mouthwash for children’s use. This information helps the consumer make a decision. –> Informed decision-making!
The recommendations in this document are of course provided purely as assistive pieces of advice and are not legally binding. Given that there are no alternative guidelines, however, it can be assumed that these recommendations are nevertheless instrumental in the legislative decision-making process.
“Eight out of ten cats prefer Whiskas” says a maker of animal food delicacies. Whether the confident producer is right or not, we may never know, but one thing is sure: this slogan can only be used by that one producer. Slogans are a protectable species in their own right when it comes to trademark law, and are popularly used in the cosmetics industry as much as elsewhere. From a regulatory perspective, all letterings that can be graphically depicted can be protected as trademarks. A distinction is made between the following types of trademark:
- Word mark: Suitable for words (e.g. company names or products), slogans, letter combinations (e.g. acronyms of company names), or number combinations
- Figurative mark: Suitable for elements that are purely images without words (e.g. logos)
- Word/figurative mark: Suitable for combined word/image elements
- 3D mark: Suitable for shapes of goods or packaging (e.g. specific drink bottles or shapes of jar)
- Acoustic mark: Suitable for “jingles”, a relatively new type of mark
Marks can be registered at the national level (e.g. IGE in Switzerland or DPMA in Germany) or at the international level. Options for the latter include, for example, registration with EUIPO (for EU-wide protection) or with the World Intellectual Property Organisation (WIPO). A trademark is protected for ten years starting from the filing date, but the term of protection can often be extended for another ten years as many times as desired. Use of the “registered” trademark symbol ®, familiar from the U.S. region, is not obligatory in Switzerland or the EU.
The regulations for trademark protection and advertising claims are key elements when it comes to consumer goods. As the pace of dissemination of advertising and product information over digital channels continues to accelerate, ensuring adequate protection for products and consumers will be more important than ever in future.
Product & Sales Manager
Game, Set, Match! - sounds the final call. But before you get there you have to work point by point. This might be the only similarity which my passion for tennis and cosmetic regulatory topics share. The versatility of cosmetic ingredients offers a big playground for regulatory topics and issues which often happen to be a challenge and chance at the same time. As a passionate cosmetic chemist I'm looking forward to new regulatory adventures and confirm: challenge accepted!