When it comes to protecting the appearance of products with registered intellectual property rights in the UK and other parts of Europe at least, quite rightly one of the best ways to obtain this protection is through the usage of registered designs, which provide for a period of protection lasting up to a maximum of 25 years (at least in the UK, Germany, and remaining parts of the EU).
Though one of the primary facets of valid registered design protection in many of these jurisdictions is that this protection can only be validly obtained so long as it is applied for prior to publicly disclosing the underlying design in any way (or so long as it applied for within 12 months of the first disclosure of the underlying design, if using the “novelty grace period” concept).
However, another less traditional tool is the usage of trade mark protection to protect the appearance of products.
Unlike design registration protection, trade mark protection has a potentially unlimited duration, and is intended to protect particularly distinctive visual characteristics of a product. These may be as a result of the visual appearance of the product differing somewhat from the sectoral norms in some way, such as by using a particularly unusual colour scheme, or shape. In this way, it must be established that this visual characteristic can be attributed as a badge of origin for the product in question, such that it is through this visual characteristic which the average consumer understands that the product is attributed to a particular entity.
Being able to establish this causal link between the pertinent visual characteristic of the product, and the relevant owning entity, may not be an immediate process (though it can be, if the characteristic is highly distinctive), and so may instead take some time for consumers in the sector concerned to make this causal link. This being case, trade mark protection for this visual characteristic may in some instances need to be deferred for a period of time whilst consumers start to establish this link in their minds.
In any case though, the prospect of obtaining trade mark protection for visual characteristic of a product or product line can be highly lucrative, and hence well worth considering to the extent possible.
In terms of the visual characteristics which might be protected with a trade mark, these might include aspects of the 3D shape of the product (shape marks); particular colour or surface detail features on the product (position marks); or perhaps most bullishly the simple use of particular colours or colour combinations for the relevant product (colour marks).
Inherently, it is be noted that showing a sufficient level of distinctiveness in a visual characteristic to merit it with trade mark protection may be more challenging compared with showing the same level of distinctiveness for a more traditional type of brand identifier, such as a brand name or logo, where a consumer may be more readily accustomed to associating this identifier to a particular entity as a badge of origin.
Though for those seeking to better protect visual characteristics of distinctive products or product lines, trade mark protection, alongside any design registration protection used, may well be an option that is worth considering! Fortune favours the brave and all…