In Part 1 of this series, I introduced the different methods for seeking protection on product designs, namely, trade dress, copyright, and design patent. In Part 2, we took a closer look at trade dress and how to obtain this type of intellectual property protection. Part 3 further explained the consumer recognition requirement for trade dress protection. This article provides examples of popular brands that have successful trade dress claims.
Private label store brands often use similarly colored packaging to help the consumer associate the store brand with the original product. You may notice your local grocery store carries a popular product that is packaged quite similarly to the successful name-brand product. The intention is to lure consumers to purchase the cheaper product by making it seem equal in quality to its more expensive counterpart. For example, an aspartame-based sweetener would have blue packaging (conjuring up an association with the Equal® brand), a saccharine-based sweetener would have pink packaging (creating an association with the Sweet N Low® brand) and a sucralose-based sweetener world have yellow packaging (to associate with the Splenda® brand).
This is a common practice for store brands and other private labelers. The issue here is protecting trade dress, the distinctive feature(s) of a product and/or packaging that consumers automatically associate with a particular brand. This can be an important asset in a company’s intellectual property portfolio, and when copied, it can lead to costly court proceedings. It is quite difficult to obtain trade dress protection on design and color, and private labels capitalize on this limitation. The court in one case held that a store could do this as long as the product packaging displayed the store name and logo prominently and store shelf displays drew attention to the different products with “compare and save” type displays.
Despite these limitations, there are many examples of popular brands with successful trade dress protection:
- Apple registered its retail store layout as a distinctive trade dress as well as its iPhone design.
These are but a few examples of the ways trade dress protection can be acquired. The last article in this series, Part 5, reveals some unsuccessful attempts at trade dress protection.