Many business owners know that names, slogans, and logo can act as trademarks and can give the owner exclusive rights to use that phrase in connection with their products and services.
But how can business owners protect the design and look of their product or product packaging to stop competitors from making similar packaging?
Protecting the “look and feel” of a product is becoming increasingly important to brands, as consumers look beyond typical names and logos, and start identifying certain brands with certain design techniques and identifiers.
There are multiple ways to protect the look of a product using three distinct intellectual property (IP) laws in the United States: copyright law, trade dress law, and design patent law.
But what is the difference and which is right for your business? This article will explore the various types of protections and where to start when selecting ways to protect your IP.
Copyright: Protecting the Look from Reproduction
Copyright law protects “creative works” from, among other things, the unauthorized reproduction of that “creative work.” The standards for qualifying for copyright protection is low – the design must contain a “modicum of creativity.” In the context of product packaging, this essentially means that anything that is not a combination of basic shapes likely qualifies for copyright protection.
So, let’s say you’ve designed an elaborate label for your wine with dozens of design elements in bright, vibrant colors. There is a good chance this could be protected under copyright law.
However, copyright law does not protect functional elements and it only protects the expression of an idea, not the idea itself. So you can protect a copyright in your specific ‘drawing of a sunset’ appearing on your packaging, but you can’t own a copyright in the general idea of a sunset appearing on packaging.
It is therefore a limited protection that is only available for certain labels and other items.
Copyrights are also limited in the scope of their protection. The standard for copyright infringement is that the copy is ‘identical’ or ‘substantially similar.’ This means that if a work is ‘inspired by’ your work, or may share the same themes and overall imagery, but in a different way, it is unlikely that copyright protection will help you protect your product packaging or design.
Copyright protection is a limited protection from the unauthorized reproduction of that copyrighted work. Copyright protection is most powerful when you are trying to prevent others from taking a design and verbatim copying it, such as counterfeiting or piracy.