Below is an excerpt from John McKeown’s September Mailer where he discusses protecting product shape and appearance.
Product shape and appearance are tangible elements of a brand. Both elements affect the image and values associated with the brand, as well as distinguishing 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 shape has been protected in many countries through trade mark registrations.
In a number of markets product shape is a key element of the brand as is evident from the distinctive shape of MAG® brand flashlights, PERRIER® 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, the positioning of TYLENOL® brand acetaminophen emphasizes fast relief and the design of the easy open bottle is consistent with this. 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 Trade-marks Act as a distinguishing guise, registration under the Industrial Design Act and a common law action 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.
More information to follow next month.