Product packaging generally serves two purposes: to protect the product it contains and to make sure the product stands out from others on the shelf. This often involves a significant amount of investment from a business, but can also give rise to ownership of intellectual property rights which, if protected properly, can offer a significant commercial advantage for a business.

Packaging is rarely considered as an element of a business that needs protecting, which leaves broad scope for copying from competitors. Sometimes a business will use trade marks in order to protect their brand, but rarely will they consider filing protection for product packaging, but it may be an option.

Such protection can be afforded to most aspects of packaging, from the name on the front of it, to the way it looks or even, if it is really special, the way it functions.

So how can you protect your packaging?

  1. Trade marks

Trade marks do not protect just a brand name. Trade marks can be a useful tool to protect other aspects of packaging such as the wording used on it, or certain designs or characters you might choose to use.

As evidenced by Coca-Cola successfully protecting their signature packaging design by way of trade mark registration, trade marks may also be used in certain cases to protect the shape or outline of a certain product or product packaging.

Trade marks offer substantial protection against copying and if you have registered rights it is easier to prove where another company is infringing on your registered rights.

  1. Automatic protection

Some IP rights arise automatically, such as copyright and unregistered design rights. These can be relied upon to protect your packaging as soon as the packaging is designed, as it instantly benefits from these types of protection. The benefit of these being that there is no need to register either of them, consequently they cost nothing to use as protection, save the price of designing the packaging.

However, unregistered rights don’t always offer the most effective protection. Often it is difficult to prove infringement. Similarly, they only extend to the appearance of the packaging; therefore offer a limited scope of protection.

  1. Registered Design Rights (RDR)

More thorough protection can be sought by registering designs with the Intellectual Property Office. This provides what is known as a “monopolistic” right over that design, essentially meaning that you own the rights to it and no one can copy it.

Registered design rights can apply to anything in part or as a whole, whether it be 2D or 3D, so long as it is “new”; it cannot be a copy and must not have been disclosed prior to registration. There are other hoops to jump through to be able to rely on RDR, however, once the registration process is satisfied, the registered design will enable a business to enforce its registered rights against copying.

Registered designs can provide a business with a robust form of protection over packaging design.

  1. Patents

Patent protection can also be used to protect product packaging. Often patents are seen as only really applicable to inventions, so businesses don’t consider them when looking for protection, but a patent can be used to protect product packaging / methodology.

Much the same as RDR, patents offer a monopolistic right over an invention or methodology that has been registered. Patents can be used to protect features of packaging, such as the opening mechanism or even the packaging itself, if it unique and new to the market.

The robust protection provided by patents comes at a cost and there are requirements which the invention must fulfil to be registered. It is by no means a cheap method of securing protection and can involve a lengthy process to register.

Ultimately, there are many ways in which you can protect your product packaging and its design and potentially the way it works.

Having packaging designed and made can be a time consuming and costly enterprise for any company, so it is always a good idea to consider how best to protect such an investment.

If you have any questions or would like advice on how best to protect your product packaging, or any other element of your business where you think IP issues may arise, please do not hesitate to contact Jessica O’Riordan who is a solicitor in our IP/IT team on 01392 210700 or email at ip.it@stephens-scown.co.uk.