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.
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.