Protecting Product Packaging using Intellectual Property Laws

Product packaging sets business products apart from the competitors and makes it easy for consumers to recognize the brand. Consumers associate a brand with Intellectual Property, its look and feel and packaging, they can ignore the name or logo for a while but not the packaging.

A product packaging is something that a customer sees first while buying a product. It may take several years and efforts of businesses to design a unique and different packaging for their products. It may be in terms of size, shape, design, color, or any other visual feature of the product.

It is important to protect all hard work, investment, money and time a brand invests in designing a unique packaging. Therefore, it becomes important to protect your brand’s packaging. There are numerous ways to protect the look of a product using intellectual property (IP) laws.

So, how can you protect the product packaging using distinct intellectual property laws?

Trademarks:

Trademarks are best in protecting trade dress i.e. different aspects of packaging such as size, shape, color, design, texture, graphics or certain features which set the product apart from others. Trade dress comprises of all aspects of packaging that depict the overall appearance of the product. Apart from the appearance of the product, it helps in identifying the source of the product.

How to protected product under trademark? As it plays a very significant role in the minds of consumers.

• Protecting your trade dress under trademarks, will keep infringers away from copying your trade dress.
• Registering a trade dress or shape of a product as a trademark requires consideration of certain factors such as the distinctiveness of the trade dress i.e. it should be unique and not common.
• It should not have any functionality.
• The trade dress should be capable of creating a brand value in the minds of customers.
• The best example of a distinctive trade dress is the Coke bottle and Pepsi ball design which sets apart both even though both are from same beverage industry.

Copyrights:

Although copyright protects the creative or artistic or literary works of the author, but sometimes it protects product packaging. A degree of creativity for the trademark dress to get the protected under copyrights law. Common shapes/ designs are not the subject matter of copyright but any imperfect arrangement of shapes in any pattern is eligible for copyright protection.

Copyright registration is available for any specific drawing or design on the packaging but not in the idea behind that design. Another point to keep in mind is that copyright protects art and literature. Therefore, a product packaging to get protection under copyrights must have elements of artistic work.. Be it in form of graphic or pictorial creative or any text as literary work. Do consult copyright lawyers for understanding and filing application under relevant law.

Designs:

A Design registration is issue for the aesthetic, attractive or ornamental features of a product or its packaging and design registration protects the ornamental features which are part of the whole product i.e. they cannot be separated from the product. Another consideration for filing an application for a design registration is that the said packaging or product shape must be new and original. Therefore, the uniqueness and visual appearance of the product or packaging makes the same eligible for design registration.

The last amendment in Designs Rules came in to force from 30th December, 2014, which incorporates a new category of applicant as small entity in addition to natural person and other than small entity.

Essential requirements for the registration of design under the Designs Act, 2000:

• The design should be applied or applicable to any article by any industrial process.
• The features of the designs in the finished article should appeal to and are judged solely by the eye.
• The design should not include any trade mark or property mark or artistic works.
• The Design should be significantly distinguishable from a known design or a combination of known designs.

The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new Subject matter. Practical example: The known shape of “Kutub Minar” when applied to a cigarette holder the same is registrable.

To sum it up, go for a trade dress/design protection if your packaging is visually different from others and makes an impression in the minds of the consumers about the brand.

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