Packaging for consumer goods may be considered ordinary, but different designs can provide a competitive advantage and attract customers. Intellectual property protections for package design can help prolong and protect this advantage.
Packages have two features. The first feature is performance which includes how the package protects its contents, opens, closes and dispenses. Package design is the second function and constitutes its aesthetic function or appearance. There are several ways to protect use of the package design.
The U.S Patent and Trademark Office reviews the design for patents. The design must be decorative and non-functional. Patents last for 14 or 15 years and are not renewable.
Next, trade-dress covers the package’s overall visual impression. The package and, possibly, its contents are components. Trade dress itself provides protection. But registration with the USPTO has advantages such as providing notice. Registration last 10 years and is renewable for another 10. For registration, the trade-dress must be distinctive.
Trademarks differ from trade-dress because these can be a word, slogan, symbol, name, icon or other embodiments. The USPTO issues a trademark if it is distinctive and is presently used or intended to be used within a certain time. Trademarks do not expire if they stay in commercial use.
These measures do not prevent infringement or unauthorized use of packaging. But the owner has the right to sue against infringement in federal court. Typical defenses against infringement lawsuits are that there was no infringement or that the patent, trademark or trade-dress was incorrectly granted because the registration was flawed.
The frequency of redesigns can undermine legal protection. For example, courts in trade-dress infringement cases determine whether the trade-dress is inherently distinctive and whether consumers associate the trade-dress strictly with its owners. This occurs over time and this association may be diminished if there are too many redesigns.
An attorney can help protect ideas that set you apart from your business competitors. They can help you meet the requirements of federal and Florida trademark law.