Can you patent or copyright product packaging?

How important is the packaging for your product? Packaging not only protects the contents but also functions as a calling card for your business.

Consider how distinctive the shape of the classic glass Coca-Cola bottle is. It’s instantly recognizable around the world. Clearly, you want your packaging to make a similar first impression on your customers.

When packaging is really distinctive and unique, it is critical to protect it as proprietary intellectual property. In fact, many entrepreneurs are not aware that it is possible to protect their packaging with rights under patent, trademark and copyright laws.

Of course, it is appropriate to obtain intellectual property protection on the items that you manufacture as well, so make certain that you stay focused on all aspects of your business when it comes to intellectual property.

Design Patents

In the United States, a design patent is aimed toward protecting an ornamental design of an invention. To put it more simply, a design patent protects the appearance of an invention or product packaging.

Most people are more familiar with utility patents. These are patents that protect the functional or utilitarian aspects of an invention. Accordingly, they usually are directed to apparatus and methods. Design patents are something else because they protect the appearance of an item, which makes it the perfect choice for protecting a unique packaging style.

Let’s go back to that Coca-Cola bottle for a moment. The company obtained U.S. Design Patent No. D48160 in 1915 for their innovative design. More recently, U.S. design patents have been granted to Starbucks for coffee cups and coffee lids, to Kraft for a salad dressing bottle and to Chobani for their boxes for yogurt.

How do you know when you need to consider design patent protection for your company’s packaging? It’s always best to explore this with an experienced intellectual property lawyer. If you simply are using off-the-shelf cardboard boxes, you don’t need to be concerned about design patent protection. On the other hand, companies that develop and design entirely new and innovative packaging definitely need to take a closer look at their available options.

Trademark Protection

Businesses frequently choose a name, logo or other device that indicates the source of particular goods. One example of a trademark is “Coca-Cola.” However, trademark protection also may be granted to items of “trade dress.”

Trade dress refers to the overall image and appearance of a product. This can encompass numerous characteristics of packaging such as graphics, texture, color combinations, size and shape. Continuing with our Coca-Cola theme, the company has registered their bottle design as U.S. Trademark Registration No. 696,147.

A federal trademark registration for trade dress must meet certain standards. For instance, it cannot be functional and it has to be distinctive. When it comes to trade dress, “functionality” is a bit of a contradiction. After all, the Coca-Cola bottle possesses functionality in that it contains liquid. However, the U.S. Patent and Trademark Office is looking for something a little different with regard to trade dress. Namely, they are examining whether or not the applied-for trade dress is essential to the purpose or use of the product or if it might affect the quality or the cost of the product.

In the example of the Coca-Cola bottle, the shape of the bottle does nothing to improve the flavor of the contents, nor is it less expensive to manufacture. This means that the design is not functional.

Additionally, the bottle’s design is distinctive in that it helps to identify that it comes from a particular source.

Some trade dress is immediately and inherently distinctive. Other trade dress acquires distinctiveness through many years of use. It is always wise to work with an intellectual property lawyer to determine the distinctiveness of your company’s trade dress. When your trade dress is truly original, it’s wise to seek immediate protection.

Protection Through Copyrights

Creative expressions like books and songs are protected with copyrights. Product packaging may not be a film or a painting, but it can still be protected by a copyright.

Copyrights are fairly versatile, making it possible to protect things like the graphics, layout and two-dimensional text on packaging. Further, copyright registration may be obtained on the packaging itself if it possesses unique or creative three-dimensional components.

Before anything can be formally protected under United States copyright law, it is necessary for it to be fixed in a tangible medium. Moreover, the protected creation must be an original work of authorship. In the case of product packaging, this means that the packaging was not copied from someone or somewhere else and possesses some degree of inherent creativity.

In general, the Copyright Office’s requirements for creativity are relatively low. This means that it is fairly easy for almost any aspect of product packaging to be eligible for at least some copyright protection.

Take the Next Step

For too many entrepreneurs, protection of intellectual property is an afterthought. This is true not only for inventions but also for the packaging that they design.

If you have questions about patents, trademarks, copyrights and how they can protect your creativity and ideas, contact Williams IP Law today.

Author: Jeff Williams

Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner.  He brings a particular set of strengths and unique perspectives to the firm.    
 Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005.  He was an engineer for a number of years at a number of large corporations before pursuing his law degree.  He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010.  By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.