The term “the new normal” has been used to an excessive degree in the context of the Covid-19 pandemic, and the resultant shutdown of countries and economies. The question is whether this over-used term is, or will be, relevant for brand owners; in particular, with regard to their trade mark portfolios.

In facing “the new normal”, brand owners will have to consider broadening the scope of protection of some existing trade marks to cater for changes to consumer behaviour, new lines of business ventured into, or opportunities that emerge as result of the pandemic and its consequences.

There is no doubt that consumers have formed new likes and dislikes over the months of lockdown, picked up new habits, and acquired skills and knowledge – most, if not all, will continue post Covid-19. Similarly, entrepreneurs and business owners have had to adapt to meet the demands of their consumers and to ensure the continuation of their businesses.

There are many examples:

  • In the early days of the lockdown, online shopping for certain limited goods was the only shopping that took place and many consumers were for the first time exposed to the convenience of online shopping. These consumers will likely continue to shop online.
  • Manufacturers/producers began to sell their goods and/or products online – even those whose previous sales model was third-party distribution or retail. Many restaurants, for example, created apps to facilitate the online ordering of food, delivered either by the restaurant or by third-party service providers. These business changes will probably survive Covid-19, as consumers have become accustomed to these value-added services.
  • Many people and entities in the service industry were forced to focus more on online renderings. There’s no better example than the entertainment industry, where many artists now perform online. There are also many new online training and educational courses, and online auctions are now fairly commonplace.

Today, there is almost no product available at a brick-and-mortar store that cannot be bought online and delivered to your front door. Again, the convenience of the delivery experience will probably result in delivery to consumers becoming the norm in many industries. Further, it will make little difference to the consumer whether these goods are delivered by a service provider or by the business themselves. Pressure on profit margins are therefore likely to result in deliveries being done by businesses, as opposed to third-party delivery companies. Businesses all over the world are realising, in line with other developments, that it is no longer crucial to meet with clients/customers in person to train them or market products/services to them. No doubt, we will see more meetings and training conducted via platforms like Skype, Microsoft Teams and Zoom. Even conferences, networking events and dinner parties are being held online.

Many businesses, both local and international, have found their “new normal” in branching into areas that they probably never considered before. There is no better example locally than South African Breweries and local distilleries adapting operations to produce hand sanitisers. There is also Defy Appliances, a large South African manufacturer of domestic appliances, working on a project to manufacture tens of thousands of ventilators for use in Sub-Saharan Africa.

Further afield, Dyson, which produces high-end vacuums , is also producing ventilators, and the likes of Louis Vuitton and Burberry are manufacturing non-surgical face masks. Delivery services also expanded their service offerings. Alcohol delivery app Bottles moved into the delivery of many other products, as did Uber Eats. All of these brand owners will need to consider whether it is worthwhile to expand their trade mark protection for defensive purposes.

Business owners will have to anticipate potential changes in the behaviour of consumers and will be forced to consider, if they haven’t already, tweaking or changing their business offerings. These decisions will impact on the trade marks of a business in that the scope of protection of some of the trade marks, in particular the main trading styles, will probably have to be broadened.

Brand owners, trade mark portfolio managers and custodians are encouraged to look at their business models through a “Covid-19 lens”. Given the changes and anticipated changes in consumer behaviour, should the protection of the trade marks in the portfolio be expanded or not? (In this context, it is wise to remember that, generally speaking, the protection of a trade mark is limited to the goods/services included in the class for which the trade mark is registered.)

Suggested considerations include:

  • Retailers expanding their trade mark protection to include delivery services;
  • Manufacturers and producers expanding their trade mark protection for goods to include wholesale and retail services and also delivery services;
  • Clothing manufacturers and fashion brands expanding their trade mark protection to include facial masks and other protective wear;
  • The manufacturers that ventured into the manufacturing of ventilators and similar equipment expanding their trade mark protection to medical equipment; and
  • Alcohol and similar producers venturing into the manufacturing of hand sanitisers to expand their trade mark protection to the class that cover sanitisers and similar products.

In addition to a review of current trade mark portfolios, and before use of the trade mark commences, it is important that the necessary trade mark searches be conducted to ascertain whether the trade mark is available for use – especially if it will be used in relation to a brand new product or service as “the new normal” begins to unfold.

Please contact us, should you have any questions or queries. A review of your trade mark portfolio in the context of this communication could be done at no charge.