Difference Between Product Design & Product Packaging in Trademark Law

Businesses protect innovative packaging with patents and trademarks.

The product design and product packaging have different trademark protections under federal and international law. Legal guidelines under intellectual, patent and trademark law, prevent other companies from using a design without the permission of the designer. Laws also require the designer holding the trademark to receive payment for the design use. The legal differences between design and packaging are not always clear cut when the design for the product also features a package to hold the contents of the product.

Product Design

Product design, as defined by A.K. Chitale and R.C. Gupta in their text "Product Design and Manufacturing" published in 2007, includes converting ideas into a reality that ideally answers some sort of human need. A designer ideally creates a product that has the potential to sell in multiples and attract an industry willing to invest the funds to mass produce the design. The authors track the cycle of design that features a feasibility study, preliminary design and a detailed phase that involves in-depth examination prior to mass production.

Product Packaging

Product packaging involves a way to get the product to market, protect the product from damage during shipment and marketing and also to "indicate a specific entrepreneur as the origin of the product," according to Innovaccess, an industry information service. The appearance helps market and sell the item and manufacturers wish to protect the packaging as part of the product. Protection is limited when the packaging involves a pure functional aspect because limiting the use of a functional product inhibits business competition.

Trademark Law

A trademark, according to the United States Patent and Trademark Office, differs from a copyright or patent. Under agency rules, a trademark "is a word, phrase, symbol or design," or a combination, "that identifies and distinguishes the source of the goods of one party from those of others." Patents and copyrights protect the item or the work itself. Each of the steps in the design help document the right to a trademark for the product. The design process itemizes the subsystems and components, preparation of detailed drawings, creation of a prototype and testing the item. Evidence of these steps help prove a right to the trademark.

Overlapping Design and Packaging

Problems arise when the product design and the packaging become intertwined, making it impossible to identify the product from the packaging and clouding how much of the packaging defines the product. William T. Fryer, III, professor at the University of Baltimore School of Law, questions the practicality of the use of trademarks and patents when a design integrates the two concepts and creates difficulties in separating the design from the packaging.

Fryer provides the example of trademarked perfume packaging that delivers the product. Legal courts must decide if the packaging defines the product or if the law isolates the packaging as separate from the product. The question, according to Fryer, deals with "using trademark protection alone, or using trademark law in combination with a design patent on the same product appearance." The legal debate continues without a clear-cut definition.

References

• LEDA at Harvard Law School: Protecting Works of Fashion From Design Piracy
• BitLaw: Design Patents
• World Intellectual Property Organization: Paris Convention for the Protection of Industrial Property
• World Trade Organization: Overview — The TRIPS Agreement
• Innovaccess: Specific Rules — Product Packaging Protection
• Intellectual Property Watch: WIP Discusses Industrial Design Treaty, Trademark Protection On Internet
• John Marshall Law Review; Trademark Product Appearances Feature Protection
• Product Design and Manufacturing: A.K. Chitale, et al.
• United States Patent and Trademark Office: Trademark, Copyright or Patent?