Samantha Collins, partner, and Marcela Carvalho, associate, at intellectual property firm Marks & Clerk, explain how due to so many femtech products being directed straight at consumers, as opposed to medical professionals, brand protection is particularly important.
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It is not news that women’s healthcare has been overlooked by medical research over the years. The gender discrepancies within the healthcare sector have fuelled the demand for innovative technologies to give women more control over their health. These technologies are now commonly referred to using the coined term “femtech” and provide women with ways to tackle pervasive female-specific healthcare issues, such as menstruation, fertility, contraception, peri-menopause and menopause, pelvic health and breastfeeding.
With growing focus on finding solutions to address women’s unique physiological and reproductive needs in more empathetic and effective ways, femtech has been on a rapid upwards trajectory in recent years. It is estimated that femtech companies are currently worth $28 billion, and within the last five years, the UK purportedly raised $442 million in venture capital (VC) investment in this sector.
Femtech solutions of recent years have taken the form of online platforms for providing information and access to specialists, wearable tracking devices, wellness devices, diagnostic test kits, intrauterine devices, period-tracking apps, and breast pumps to name a few.
What we are seeing in femtech is that many of the innovative solutions being developed are marketed directly to consumers, rather than to medical professions to then discuss with patients. This gives rise to a greater degree of consumer choice and means that one of the key ingredients for commercial success in this area is an effective brand protection strategy. This is because brands and reputation are what consumers rely on when they are choosing products, such that having a strong brand identity that is memorable and protected robustly is particularly important.
It is clear that some of the hottest players in the femtech sector are well aware of the synergy between commercial growth and brand protection. Here is our summary of what the trademark filing trends of a cross-section of businesses in the femtech sector can tell us about brand protection strategy in this area.
What – There is a real mix in the type of trademarks that are being registered in the femtech sector, with most businesses registering plain word marks to afford them a broad scope of protection. However, it is also clear that femtech businesses have thought about protection for how their product and packaging looks and how it will be marketed to consumers, with many opting to register logos, slogans, as well as mobile app icons, too.
Where - Europe and North America appear to be the top territories where femtech businesses are seeking to protect their brands. This reflects the commercial reality of the femtech industry, and also aligns with the top 10 territories for VC investment in this sector. However, the most successful femtech technologies are being used in many countries which go beyond the countries where their owners have attained protection for their brands. For example, the menstrual cycle tracking app Clue, has millions of users from 180 countries but they have only registered their mark in around a dozen territories. Trademarks are territorial rights, and whilst businesses need to make a cost vs. benefit analysis when planning their intellectual property strategy, it is key that they seek protection at least in their core markets of interest.
Coverage – Trademark applications must include the goods and services for which protection is sought, and again a balance often has to be struck between ensuring a good level of coverage on the one hand and cost on the other. Although funding levels are improving within femtech, it does still seem that several femtech businesses are taking a fairly narrow approach to their trademark protection, focusing on the absolute core products and services of interest, and choosing not to include peripherals at this stage. Whilst protection in class 10 for medical devices and class 44 for medical services are understandably high on priority lists, computer software in class 9 and Software as a Service / Platform as a Service in class 42 also feature heavily. We are also starting to see more mention of AI in trademark specifications.
We are seeing a promising rise in femtech, which has potential to improve women’s health. As femtech continues to grow, it will hopefully advance technologies that could help us achieve gender equality in our society. Having a robust brand protection strategy is just one of the tools that will allow businesses to secure and maintain a competitive advantage and a loyal customer base in this ever-growing sector.
