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A Primer: Package Design as Intellectual Property

Intellectual property refers to creations of the mind for which the creator can obtain legal protection against unauthorized use.

Packaging Intellectual Property

Of consumer packaged goods, the package has two types of features: functional and aesthetic. The former relates to how the package performs (i.e. protects, opens, closes, dispenses, etc.). The latter relates to how the package looks, that is to say, its design. This article addresses package design as intellectual property and the various ways it’s protected with patent, trade-dress, and copyright. (Trademarks are discussed to distinguish them from trade-dress.)

Package design differentiates and can be leveraged to a competitive advantage. The best competitive advantages are those that are sustainable, so it’s good strategy to protect package design with one or more of the aforementioned.

Design patents. In the U.S., patents are issued by the United States Patent and Trademark Office (USPTO). There, an examiner decides whether the design meets the criteria of, first, being decorative and non-functional, and, second, being original (translated as novel and non-obvious.) A design patent provides protection for 14 or 15 years (depending on when it was filed.) Design patents are not renewable.

Trade-dress. The package might not be the only component of trade-dress (which also might include the product); however, the package always is a component. Trade-dress portrays the overall visual impression of a packaged product. Trade-dress exists regardless of whether it’s registered with the USPTO, but registration has benefits, if none other than giving notice. Registration is good for 10 years and can be renewed for another 10. The requirement for registration is that the trade-dress be distinctive.

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