-Martha Engel, Attorney
To me, one of the most exciting aspects of intellectual property law is when patent law and trademark law intersect in product or packaging design. Last week, I had the honor of speaking to a graduate product design class at the University of Minnesota’s School of Design, where I discussed the valuable strategy of having a novel design that can translate into forming trademark rights in a distinctive look and feel of the product that allows consumers to instantly associate the look of the product with a brand.
One of the best Instagram accounts for seeing copycat design is @Diet_Prada, and they recently posted quite a gem. (H/T to my sister for alerting me to this one.)
On the left-hand side is packaging for cosmetics sold by Pat McGrath Labs, a high-end cosmetic brand from one of the most influential makeup artists in the world. Pat McGrath’s iconic packaging – putting the $100-ish products in shiny sealed foil pouches filled with sequins – has gained significant attention and notoriety in the fashion world. There are even blog posts about what to do with the sequins.
On the right-hand side is packaging for some ornaments with $20 mini perfumes by Victoria’s Secret for this season. Does it look familiar?
“They took a pouch, and put some sequins in it, and packaged some beauty products in it. So what?” Well, I think think the copying goes even beyond that. The choice of the color palette. The positioning of the label on the package. Accidental? Perhaps but seems unlikely.
So how can a company protect its thoughtfully designed packaging from being ripped off? First, try to seek design patent protection or even utility patent protection, if there’s some functional aspect to the packaging and not purely ornamental. Then craft an appropriate marketing / PR strategy draw consumer attention to the packaging so that you could argue that consumers associate that packaging with your company. Also, pay attention to your agreements with your packaging suppliers and, if you are asking them to do something unique and to your particular specifications, ensure that there’s language in the agreements to protect you in the event your supplier makes similar packaging for others.