We all know children pay little attention to packaging. Food manufacturers should, however, as packaging can be a useful tool for competitive advantage and product differentiation.
In a market where power belongs to the brand owner (premium or own-label), rights in packaging can give the food manufacturer an edge. First, technically advanced packaging needs protection from copying. Secondly, unique designs may act as a 'secondary brand'. This creates customer loyalty and means that you use the same distinctive features with different purchasers. Third, ownership of the packaging rights ensures that you do not need to re-tool on termination of a particular contract.
More and more businesses use European Community registered designs for the protection of packaging. It is worth noting that a chief requirement for protection is that the design should be original, not commonplace.
However, there is little pre-registration investigation and for a fee of about euro 350 it is possible to obtain protection throughout the European Union for five years, renewable for up to 25 years. Registration can discourage others from adopting similar designs and can provide remedies of injunction and damages for any misuse.
There are parallel procedures for registered designs in the UK only, but these are less cost effective.
Even if you do not register your rights, both UK and European copyright law provide you with copyright protection for original packaging. These rights don't last forever, however, and you will need to establish that your designs have been copied. Even independent designs (ie un-copied) will infringe if they are similar to the registered design.
In certain circumstances, packaging might be sufficiently distinctive to qualify for trade mark protection. This is advantageous as it can lead to perpetual protection (subject to renewal payments). However, there needs to be something very distinctive in the design to qualify for such trade mark protection.
Finally, if packaging incorporates some novel technical feature, like dispensing means, then it may be patentable. Patent protection means that only you would be entitled to manufacture that packaging or license its manufacture. However, if your technology becomes industry standard, then a refusal to license the technology may amount to a breach of competition law.
So, be like a baby, not a child. At that age, the packaging was more interesting than what was inside it! FM
Michael Luckman is a partner in UK law firm Wragge and Co LLP.