IP protection in the cosmetics sector: patents, utility models or trade secrets?

May 2021

When we talk about cosmetics, we inevitably talk about formulas, processes or procedures embodied in certain products that help us to care for, improve and beautify aspects of our skin.

Nowadays, there are hundreds of companies dedicated to cosmetics and, of course, each one of them, as is logical, looks out for its greatest profit and performance. In this way, year after year, the main thread of the companies and laboratories dedicated to cosmetics is the innovation – and improvement – of their products, with the aim of pleasing the consumer public and gaining their loyalty.

However, the existence of hundreds of companies implies the existence of hundreds of formulas, processes or procedures. And the business world is based on competitiveness. Therefore, we must ask ourselves:

What happens when we talk about the protection of these formulas, processes or procedures?

Every company, or even natural person, who obtains a formula in this sector, must and has to protect it so that the competition does not echo of it. Otherwise, chaos would be the order of the day. This is why we must turn to Industrial Property, which offers us various options to protect the best-kept “treasure” of cosmetics companies.

There are several possible options, depending on what is intended by the owner or on the characteristics of the formula or process in question.

Patent protection:

A patent is an exclusive right enjoyed by the author of an invention to exploit it, enabling him to prevent third parties from using it without his consent. However, it is a temporary right that lasts for 20 years. Once this period has expired, the patent becomes part of the public domain, with the aim of promoting innovation and scientific development.

Of course, in order to obtain a patent for an invention, certain requirements must be met. Specifically, three requirements:

– the invention must be new (novelty),

– it must involve an inventive activity (it must not be obvious from the state of the art to a person skilled in the art), and

– it must have an industrial application.

It is very important when applying for a patent, especially in the cosmetics sector, which is one of the most advanced and innovative sectors, given the competitiveness that exists in the sector, that the wording of the description of the invention for which the patent is being applied for, as well as its claims, are as clear, comprehensible and creative as possible.

Therefore, as long as the formula or process discovered by the company in question meets these requirements, patent protection can be applied for.

Examples of companies with a multitude of patents for their products are L’Oreal or Yves Rocher.

Even in the field of cosmetics, companies sometimes make noteworthy efforts with regard to their inventions, even going so far as to make use of artificial intelligence. Continuing with the case of L’Oreal, a great example of this is Perso, its new Beauty Tech Innovation product that heralds a great future in the world of beauty.

Yves Saint Laurent Rouge Sur Mesure Powered by Perso, as the product presented by L´Oreal is called, is a smart home device that allows consumers to create their own personalised lipsticks. But what’s more, and this is where the artificial intelligence comes in, thanks to an app that can be installed on any smartphone, users can explore and try out looks. It is certainly a great merit on the part of cosmetics and beauty companies, which also manage to adapt to new technologies and the new demands of today’s consumers by using the top 1 technology in innovation: AI.

Utility model protection:

A utility model, linked to patents, is an exclusive right that is also granted by the state, in this case to the already owner of an invention, and which also allows him to prevent third parties from using it commercially. The duration of protection in this case would be 10 years.

The main difference with patents is that the utility model protects inventions of lower inventive rank and consists of one – or several – technical improvements obtained by giving an object a configuration or structure from which some practical utility or advantage is derived. Thus, this device, instrument or tool would be protected by means of a utility model (instead of a patent) characterized by its usefulness and practicality, rather than its aesthetics, as is the case, for example, with industrial designs.

When applying for a utility model, therefore, we must indicate that it is indeed a utility model and not a patent, and provide a description of the invention for which the utility model is being applied for, since, let us remember, its main objective is the technical improvement of an existing patent.

This could occur when, for example, from a formula or process already patented by a cosmetics company, an “ingredient” or process of lower inventive range has been discovered that improves the invention already protected (the formula or process in question that helps us to take care of our skin) by means of the patent.

Protection through business secrecy:

Finally, we should not overlook the figure of industrial or business secrecy.

The industrial or business secret is a tool that serves to stimulate innovation and ensure that competitiveness based on the know-how or confidential information of companies receives adequate protection against the unfair practices of some competitors and even industrial espionage or confidentiality on the part of the workers themselves.

Literally, and this is where its name comes from, it is a secret within the company. Unlike patents and utility models, trade secrets have an unlimited duration in time. However, as long as it is possible to maintain the secrecy of the object of protection.

In this sense, any information or knowledge, including technological, scientific, industrial, commercial, organizational or financial, is considered to be a trade secret. And, in order to be protectable, as we said, it must be kept secret, which means that it can only be known by a limited number of people. Moreover, it cannot be deduced by industry experts through observation or reverse engineering.

For this reason, the company in question must take a number of reasonable and specific measures to keep such information secret. Perhaps a little more – shall we say – complicated, than applying for a patent, yes, but the reward is that its protection can last forever.

This may sound utopian, but it really doesn’t have to be. If we turn away from the cosmetics sector for a moment, and go to the beverage industry, one of the best examples of how it is possible for a trade secret to work is Coca-Cola. The famous soft drink giant has always kept its formula a secret – despite all the suspicions and rumours that have always surrounded it – and it is not really known, at least not with any certainty, how it is made. If Coca-Cola had decided at the time to patent the formula used to make its soft drink, this information would have been in the public domain a few years ago, which would probably put an end to its high positioning and competitiveness in the market.

However, and returning to the cosmetics sector, it must also be borne in mind that, when choosing the best protection via Industrial Property for the formula or process to be protected, various aspects and interests must be considered. And, given that this is an industry that is constantly innovating, this protection model may not be suitable for all cases. But… never say never.

Sara del Rio

Image: Siora Photograpy on Unsplash