Protecting Product Shape and Appearance

Product shape and appearance are tangible elements of a brand. Perception of the brand is strongly influenced by the aesthetic appearance of the product and its packaging. Both elements can affect the image and values associated with the brand, as well as serving to differentiate the brand from other brands. 

A familiar example of a brand being expressed through product shape is the COCA-COLA® bottle, which is one of the world’s most widely recognized product shapes. The effectiveness of the bottle is evident by its use as a brand identifier on cans and in advertising. In addition, it has been protected in many countries through trademark registrations.

In numerous markets product shape is a key element of the brand. In these markets perception is strongly influenced by the aesthetic appearance of the product and its packaging. The sale of spirits and pharmaceuticals are good examples. However, the importance of product shape is not limited to these sectors as is evident from the distinctive shape of PERRIER® and EVIAN® brand water containers or FERRERO® brand chocolates.

Product shape and appearance can be positively coordinated with the brand image in a number of ways. First, product shape and appearance should be consistent with the brand’s positioning. For example, if the positioning of a fabric softener emphasizes softness the container will not project this attribute if it is a cold, hard metal can. To avoid such a problem the container ideally should have a finish which is softer to the touch. 

Second, an innovative product shape may result in a product which is easier to dispense or which delivers improved product freshness. For example, fresh soups and pasta sauces have been successfully delivered in tetrapak containers and bottled water has been delivered in crushable plastic containers. Finally, in markets characterized by container homogeneity, differentiation may provide a competitive advantage.

The primary methods of protecting product shape and appearance are registration under the Trademarks Act as a three-dimensional shape or a mode of packaging goods, registration under the Industrial Design Act and common law actions for passing off. Registration under the Industrial Design Act is time sensitive and must occur within one year of publication of the design in Canada or elsewhere.

If the shape or appearance of a product is not legally protectable, a brand owner cannot legally stop a competitor from copying it.

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John McKeown

Loopstra Nixon LLP.  

130 Adelaide St W Suite 2800Toronto, Ontario, M5H 3P5Canada

 jmckeown@LN.Law

437 290-5960

This article is of general nature and is not intended to provide specific legal advice as individual situations will differ. Specialist advice should be sought about your specific circumstances. Copyright © John Mckeown, All rights reserved. To unsubscribe to the IP Update please send me an email at jmckeown@Ln.Law

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