Generally, when it comes to product packaging we assume that the only protection by law it can get is of trademark. Trademark law helps to distinguish one seller from that of others in the market. Nowadays, more than the functionality or title, people go by the attractive designs and appealing package. So, sellers are always in a competition to bring out the best and the most creative way of packaging to attract consumers. Here is where copyright comes into picture. Yes, product packaging can be copyrighted even though it is of less value than trademark protection. This article analyses the importance of copyright in product packaging and how it can be used as an alternative to trademark protection.
What does copyright do? It essentially protects the expression of ideas and anything that is creative and unique gets the protection. This helps the original creator to use it without the worry of duplicity. Now, when it comes to product packaging, if the seller comes up with an innovative and unique way of packaging the products, it can get copyright protection. This will enable the seller to prohibit other sellers from using the same packing style or method used by him. For example, the seller who uses a combination of colors, shapes and designs which is unique and makes the packaging more attractive can get copyright protection.
However the copyright protection for product packaging is limited. First of all, the product packaging must contain a drawing, logo or any creative expression so that it can get copyright protection. For example, the General Mills used a professional photograph of a heart shaped bowl in the ‘cheerios’ cereal, this garnered the copyright protection as it includes a creative expression.
Secondly, if the packaging does not contain any creative expression in itself then, such packaging can get protection only if it is proved that the selection and arrangement of packaging as a whole is creative enough to get copyright. For example, the General Mills tried to get the copyright on a ‘fruit and nut’ bar packaging containing the name ‘LARABAR’. They argued that the expression and combination of different ideas itself amounts to a creative expression and thereby copyrightable. However, this contention was rejected by the Copyright Office and was observed that, for a product packaging to be copyrightable there must be a ‘sufficiently high’ number of creative choices.1
Another example wherein such contentions were rejected was in the Icelandic Cod Liver packaging, where the use of strips, colors and other specifications were just ‘standard designs’ and also certain things were incorporated only because of the government rules which did not amount to any creativity.
In yet another case, A German Company sought the registration of a two- dimensional artwork on the packaging of a skin care product.2 The name Dr. Hauschka was placed over the logo of three nested ‘U’ shapes along with a yellow rectangular box at the bottom was rejected by the Copyright Office by stating that these combination of colors, shapes or frames did not amount to be creative enough for availing such copyright protection.
The Itsa Flavored case is different from the above three situations, where the placing of a black diamond logo, the altering colors of the spiral patterns and the small graphic images amounts to the required level of creativity and thereby the copyright protection was granted.
It is limited in scope of getting protection in case of infringement. Only if there is a substantial or identical depiction of the packaging, the protection can be availed against infringement. The seller cannot claim infringement for copying the package which contains something generic. For example, if a seller puts a specific drawing of a sunset in the package he can get copyright for such specific depiction of sunset but cannot claim for infringement just because someone else has incorporated a picture of sunset as it is generic in nature.
Parle Products Pvt. Ltd., recently filed an infringement suit against Future Group Ltd., wherein they contended that the respondents had used identical/ deceptively similar packaging in their products. The Bombay High court held the decision in favor of Parle and observed that the packaging of Future Group’s products is deceptively similar and was done with an intent to confuse people.
To sum up, the copyright protection for packaging is a cost efficient and an effective alternative to trademark or design patent. However, the copyright protection is limited and is only applicable where there is a high level of creativity in packaging. The protection granted is also limited and to prove an infringement case, there must be substantial/ striking similarities. The depiction of generic matters on packaging does not amount to copyright infringement and it differs from case to case.
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