Consumers recognise products not only by the words and logos on their packaging, but also by their look and feel, including their shape and colour.
Both copyright law and fair trade practice law provide legal protection to the look and feel of products to prevent:
- the creation of copies or imitations that may be confusingly similar to the original; and
- parasitic competition by third parties.
In order to successfully invoke these grounds, IP owners must prove that their product is covered by copyright or that the fair trade practice law applies.
Where possible, IP owners should also seek protection for their products' appearance by obtaining a registration certificate under trademark and design law, which can be a strong asset if a dispute arises.
Specifically, trademark registrations should be considered where a product's appearance is associated with its commercial origin, thereby creating certain expectations of quality in the mind of consumers. The following marks can be registered as trademarks:
- figurative marks (two-dimensional marks);
- shape marks (three-dimensional marks);
- colour marks; and
- position marks.
Moreover, if a product's appearance is different from that of existing products in the market, a design registration would be an adequate form of protection (whether supplementary to or instead of a trademark registration).
Registered trademarks enable IP owners to oppose the use of identical or similar trademarks in relation to identical or similar products or services if that use would likely create confusion in the mind of consumers as to the product's commercial origin. Design registrations enable IP owners to oppose third-party use of their design, regardless of whether that use is likely to create confusion. In that sense, a design registration offers broader protection with respect to the visual appearance of a product.
Ultimately, a combination of trademark and design registrations – supplemented by the protection available under copyright and fair trade practice law – offers IP owners the broadest protection for their products' appearance.