If you have ever been tasked with considering what types of intellectual property protection were available for a new packaging design, copyright may not be the first thing that came to mind. After all, it is trademark law that is designed to protect the public’s association with a commercial name or logo, and in some cases the distinctive look (or “trade dress”) of a product and/or its packaging. Copyright, on the other hand, was designed principally to protect an author’s rights in literary and artistic works. Nevertheless, in some cases copyright may be available as an alternative or supplemental protection for product packaging.

Benefits of Copyright Protection

Copyright also has certain advantages over trademark when it comes to enforcement. In an infringement action between two similar packaging designs, there is no need to show a “likelihood of consumer confusion,” a multi-factor analysis that often requires expensive consumer surveys. Copyright law is only concerned with whether the defendant has copied the plaintiff, usually determined by examining if the works are “substantially similar.” Moreover, copyright law boasts the most effective mechanism (the Digital Millennium Copyright Act) for quickly getting infringing matter taken down from the internet.

The Catch: Originality and Creativity

In order to get a copyright registration you have to show that your packaging design is “original.” Originality in copyright law has two components. First, it must have been independently created, i.e., not copied. Second, a work must possess more than a mere de minimis quantity of creativity.

Many elements of product packaging design are deemed insufficiently creative for copyright protection, including common geometric shapes, simple color variations, and words and short phrases. There are generally two paths by which the owner of a product packaging design can demonstrate the requisite creativity.

The first is to incorporate into the packaging a drawing, logo or other artwork that is creative enough to merit copyright protection, and emphasize that artwork in the application. For example, General Mills’ copyrighted packaging for Cheerios incorporates a professional photograph (of a heart-shaped bowl containing cereal and strawberries). It clearly demonstrates enough creative authorship to merit copyright.

The second path is for packaging that doesn’t contain any individual element that is sufficiently creative in its own right. In those cases the copyright applicant’s best shot is to argue that the selection and arrangement of these un-copyrightable elements, considered as a whole, is creative enough to warrant protection.

General Mills’ attempt to register the packaging for its Larabar product is instructive as to the difficulty of pursuing the selection and arrangement path, especially for clean and minimalist designs. General Mills argued that its wrapper reflected many creative choices, including a logo and slogan, selection of color, and placement of text in a horizontal orientation around a rectangular frame. However, the Copyright Office found that this did not amount to a sufficiently high number of creative choices.

Depending on your individual circumstances, your best bet may be to seek protection for only the logo as a standalone work, and/or the packaging design generally as visual art, and/or the text on the package as a literary work.

6 Tips for Copyright Application

Dave Kluft offers tips and pitfalls when planning a copyright application for product packaging:

  1. Put on your artist hat. Remember that copyright’s heartland is the protection of literature and art, so use the right lingo and emphasize the artistic aspects of the design. Describe in detail the creative pictorial and graphic elements that the author contributed. In the event that you are forced to rely on a “selection and arrangement” argument, identify and separately describe as many individual creative choices as possible.
    By the same token, avoid terms relevant only to other types of intellectual property, like “trade dress” and “distinctiveness,” which may give the Copyright Office the sense you’ve come to the wrong place. In the Larabar case, General Mills asserted that its wrapper merited copyright protection because it was “unique.” The Copyright Office rejected that argument, explaining that uniqueness is irrelevant to the “creativity” analysis.
  2. Shift your shapes. Because copyright law does not protect common shapes, the Copyright Office tends to be suspicious of designs in which geometric shapes dominate. For this reason it has denied protection to a number of successful graphic logos, including Adidas’ three black trapezoids and UEFA’s “starball,” a set of stars and octagons in the shape of a soccer ball.
    If your packaging consists of common shapes, emphasize any way in which the shapes are irregular, imperfect, inconsistently colored or arranged in non-traditional patterns. For example, Victorinix AG recently succeeded in convincing the Copyright Office that a series of black and white graphics, consisting of original arrangements of common shapes, was deserving of copyright protection.
  3. Don’t rely on standard packaging elements. The Copyright Office is reluctant to grant protection to a design that is heavily reliant on elements typical in product packaging — such as the product name, frames and borders — or functional components, such as nutritional information or UPC codes, which are dictated by industry standards or regulations. As well, the mere arrangement of these items on the packaging will be insufficiently creative in most instances because spatial layout is considered a template for expression, not original expression.
  4. Busy is better. In theory, a simple design should stand just as much a chance of being deemed creative as a complex one — but not in practice. A busy design with many parts is more likely to contain pictorial or graphic elements that catch the Copyright Office’s eye as creative. Moreover, a busy design is more likely to manifest the kind of unusual or irregular pattern that the Copyright Office may determine demonstrates a selection and arrangement with a sufficiently high number of creative choices.
  5. Consider the text separately. Copyright Office rules discourage the registration of words, short phrases, typeface and font. However, this does not mean that none of the text on a product or its packaging is copyrightable. Even if your design doesn’t make the grade as a piece of visual art, original text of sufficient creativity and length (usually more than a couple of sentences) may be entitled to protection as a literary work independent of its placement on the packaging design.
  6. Become a temporary nihilist. The design of your packaging may have enormous symbolic meaning to you and your customers, but forget about that symbolism when drafting your copyright application. Anything that doesn’t appear on the surface of a work does not help make the case for copyright protection. When Nationwide Insurance sought to register its frame logo, the Copyright Office was unimpressed by the argument that this ordinary rectangular shape was creative because it symbolized Nationwide’s efforts to “frame” its services for its customer’s needs.
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