No, your trademarked brand name is not enough. Product packaging is one of the most under-estimated areas of intellectual property protection. While, manufacturing focuses on meeting the production and distribution scales, customers still seek to experience the premium on what they pay. Think Toblerone, Nutella, Tiffany , or a Lamborghini .
The packaging industry of today is increasingly becoming flooded with counterfeits as well as with a highly innovative sustainable inventions in packaging styles; that requires intellectual property protections to create valuable commercial advantage. Thus, making it a critical element that gives a business, the competitive edge over other brands, project quality assurance and positive sale. Therefore, failing to protect such packaging can become a misstep in marketing strategy as well as result in diminishing of your competitive advantage; that often gets infringed upon, rendering the product to lose its value to mass market.
So, what are some key insights into IP rights for your product packaging ? Take a look:

Difference Between Product Design & Product Packaging :

Product packaging and design are primarily a feature of trade dress under the trademark law and patent law that secures IP rights for the product’s appearance and functionality. Let us see the finer details into the difference between product design versus product packaging. What according to law are certain distinctions to be mindful.

Product design legally protects product’s shape or configuration of its functional elements that make it distinguishable in appearance, in the marketplace. For example, the shape of a Coca-Cola bottle is a Trade Dress secured under Trademark law for its design whereas AirDrop feature in Apple devices are purely patent driven.

On the contrary, a product packaging rights are for overall combination and arrangement of the design elements, copyright of its graphics and patents for material used. For example Indian brand ITC Limited, owns trade dress rights for its brand of instant noodles, the Sunfeast YiPPee .  However, product packaging patents are a part of utility patents / Utility Models that are mainly for the novelty and less about invention. The good news is India still does not consider utility patents/ utility models. Therefore, a  patented material or design works for both.

Types of Packaging rights:

 

1.    Registered Design Rights (RDR)- Monopolistic Rights

A design right protection can be sought for your product for its packaging layout that can be registered as brand designs with your country’s Intellectual Property Office. These design rights can provide  you with an advantage of licensing, essentially meaning that you own the design and if someone seeks to use it has to buy your licensed design rights. This creates a valuable revenue stream for your business as well as retains your market value due to its distinct packaging design. In India however, there are certain products that do not qualify for RDR, those are garments, stationary and books, automobile spare parts, national flags or emblems and  electronic circuits.

2.      Patent protection – Strong Protection but Limited Duration

Modern manufacturing is increasingly looking towards refill packaging, biodegradable sealants, and natural alternatives. Therefore, patents are a valuable tool to register your packaging as they can be used to protect features of packaging, as well as be unique to the ease of use requirements desired by customers.  Only downside with patents in packaging is the initial capital and time investment which according to experts at Nicomedia IP is not a suitable alternative for small enterprises. Moreover, a patent is supposed to be renewed after a period of time , that is recurring process unless your business invests in regular R&D.

3.      Copyright: Protecting the Appearance with long duration

Copyright is a design and appearance oriented protection in terms of product packaging. This means that copyright for packaging can only be limited in terms of the labels and colour schemes but not cover the functionality of the packaging. It is a more artistic endeavor driven and in our experience is not a recommended alternative if you seek to protect the functional elements of your product. However, an advantage of copyright protection is its, long duration that can be enjoyed if the brand can prove its distinctiveness in the marketplace.

4.      Trade Dress: Unlimited Protection but only for Appearance

Trade dress is a key element of IP rights covered under Trademark laws that are aimed at counter counterfeits. Its main objective is to ensure untrained eyes of customers can distinguish between original or fake. While the law has broad scope of application from label design, brand image, colour schemes , logo design and slogans , one drawback of the trade dress is its regional application . With trade dress there are high chances of counterfeiting unless protected in other regions; as well.

Nicomedia IP Recommendations:

Some helpful questions and recommendations before going in for packaging and registering your packaging rights are:

Questions:

Before processing with your manufacturing strategy ask the following question:

–          Whether the design will be a common basic shape or a distinct design?

–          Is the packaging unique enough compared to your competition?

–          Will a mere refinement of a mass-market or already existent variant be enough for your business?

–          Is your brand objective aiming at capturing a new market segment or just to create a commercial impression?

 

Recommendations:

Against this background, we put forth the specific recommendations intended to assist you or your clients in achieving packaging rights and its IP protections:

–          Design Research is important element before proceeding what type of packaging design or material your desire and what your brand should stand for

–          Choose packaging that are distinctive, non-toxic in material and have ease of use or functionality

–          Omit manufacturers with no set standards of manufacturing or ones that overlap with competitive brands. This not only creates risks of infringements but also risks your brands reputation

–          Hire legal or risk management experts to manage market and manufacturing compliances and inter-regional claims.

–          Design advertising and media objectives for your product and packaging design that can project distinctiveness and functionality.

 

If you are thinking of starting a new FMCG or other product based business then get in touch with us to create a secure start and get legal assistance before making the big move . Contact us HERE to book your first free appointment .