This post is Part 2 in a series on the basics of protecting your business’s brand. Read Part 1 here.
Once you have registered your trademarks for use on your company’s product, you will likely design your product’s packaging. As a product’s packaging is often a consumer’s first introduction to a product, the packaging design is important the success of the product. The packaging contributes greatly to consumers’ recognition of your business as the source of that product. The more consumers recognize you as the source of the product, the more your business’s reputation may grow and your product’s sales may greatly increase.
Trade dress is the overall look and feel of the product packaging, the actual design of a product itself, or even store décor or product displays and arrangements. Trade dress functions as a source identifier just as a trademark does. (Trade dress is also a subcategory of trademark law). This post will focus on trade dress protection for product packaging.
Individual shapes, colors, textures, and sizes or a combination of these elements make up trade dress. There are basic requirements to gain protection for trade dress. Trade dress must: 1) not be functional; and 2) be distinctive.
Trade dress is functional if it is integral to consumers’ use of the product, affects the product’s quality or the product’s cost to consumers. Thus, practically, your product’s packaging should not act as have anything to do with the product’s “functionality”. For example, the shape of a candy bar package will not be protectable if it preserves the candy bar’s shelf life.
Trade dress is distinctive if it serves to identify the producer (source) of the product. Product packaging trade dress can be inherently distinctive without having to gain secondary meaning (nationally recognition of the packaging an identifier by the consuming public). Practically, this means your business should ensure that your product packaging differs from other product packaging and isn’t confusingly similar to other product packaging for the same class of goods.
A trademark and trade dress design protection program should begin with an examination of the marketplace to survey competitors’ product packaging. Your product packaging should be distinctive over other product packaging for the same type of goods and should not include elements that may be confusingly similar to competitors’ products.
Once you have created distinctive and nonfunctional product packaging, your business should focus its advertising and marketing efforts to point out your product’s packaging as a way for consumers to find your product in stores. This will bolster consumers’ and competitors’ awareness of your product packaging as a source identifier.
Also, just like trademarks, your business should monitor the marketplace and the USPTO for product packaging trade dress that is confusingly similar to yours to avoid a loss of rights.