Vaping is becoming more and more popular and the UK government has recommended vaping as an alternative and better strategy for stopping smoking and so has the NHS. This means that there is a booming market for vaping products as a result.

Vaping liquids and disposable vapes use well-known food and beverage brands as the indications of their flavours, such as Coco-Cola, and sweet brands, to attract their consumers. This is because consumers rely on the tastes and flavours, instead of the actual vapes, to decide which vaping products to buy. This means that food and beverage companies will see their brands being infringed upon by vaping sellers more and more often. 

This is worrying for these brands for two main reasons. Firstly, consumers will associate the brands with those vaping products. When incidents happen because these vaping products do not meet safety standards, this could lead to bad PR and customer complaints. For the vaping products which also use identical or highly similar trade addresses as the original sweets, young kids and children, who normally do not pay particular attention to the marks and the products, would find it very difficult to distinguish those vaping products.

Secondly, the use of the brands as flavours for the vapes dilutes the brands themselves and deprives the brand owners of exclusive control of the brands. If they don't take immediate action, they will find it more and more difficult and costly to enforce their rights against unauthorised use of their brands in the market.

What can brands do?

The earlier the brands take action, the better.

Trading Standards have been taking aggressive action against vaping products over the last few months and it is important to keep the momentum going. Trading Standards in Rochdale, Barking, Nottingham, Kensington and Chelsea, Plymouth, Worcestershire, Hertfordshire, Canterbury and Coventry have seized hundreds of thousands of illegal vapes.  Newport Trading Standards has also prosecuted a shopkeeper for possessing illegal vapes for sale.

To get Trading Standards on the brand's side, a brand owner needs to argue that the illegal vapes in question pose a safety risk to the public by being dressed up as the actual food and beverage products.  The law specifies that vaping products must meet the following requirements:

• (disposable vapes) should not contain quantities of more than 2 ml (equivalent to 600 puffs);
• must not contain nicotine in excess of 20 mg/ml;
• and must be labelled with a UK and EU address.

Alongside working with Trading Standards to take illegal vapes off the shelf, sending cease and desist letters to put those infringers on notice of your trade mark rights is an important step.  This is to make clear to those infringers that those trade marks are protected and the brand owners will take immediate legal action to stop them infringing them. 

Finally, escalation against the big infringers such as manufacturers and nationwide distributors is often necessary. The majority of illegal vapes are manufactured domestically by the sellers themselves.  Setting a precedent and obtaining a public judgement will have significant deterrent effect against future infringements.

Issues surrounding vaping products are complex and require multiple parallel actions.  It is important to address all issues at the same time through both criminal and civil channels in order to generate the best result.  Please contact us at info@iamstobbs.com for further discussions and tailored strategies.