The design of product packaging is of considerable importance for many products, particularly those in the FMCG market. Businesses typically invest heavily in the design of eye-catching logos, labels and packaging materials, with a view to attracting the attention of consumers who are frequently presented with a myriad of product choices in retail outlets.
Very often businesses will design new typefaces in which to present their brand, and these typefaces themselves can ultimately serve to identify the commercial origin of the product itself, irrespective of the brand name presented in this typeface. By way of example, see the below image generated by Mars Wrigley to promote their carbon neutral plans:
As may be seen, the word "Earth" is presented in the same typeface in which the brand name "Mars" is typically presented on Mars Bar packaging and advertising materials, thereby reinforcing the brand identity of Mars:
Many companies overlook the possibility of protecting the original and distinctive typeface itself, and only seek to protect their brand name as presented in that typeface. However, in the UK and Europe, registered designs can be used to secure valuable protection for such new and original typefaces.
Registered design protection for the typeface provides an additional layer or IP protection for a product's brand identity, since protection of a typeface through a registered design provides the owner of that design with the right to control use of that typeface, irrespective of the text presented in that typeface and irrespective of the product concerned. Hence, the design can be used to prevent others from using an entirely different brand name or piece of text in that same typeface, even on a completely different product.
However, registered design protection is only available if the typeface is new and has not previously been made available to the public; accordingly, if registered design protection is required, an application for registration should be made as early as possible and ideally before the launch of any new packaging or promotional materials.
Mars Wrigley provide an interesting example of how registered designs can be used to supplement trade marks by providing protection for typefaces. Mars Incorporated is the proprietor of several registered designs protecting the typefaces used for their confectionery products, as shown below:
Through these registrations, Mars Incorporated enjoy the right to control use of the typefaces by third parties, irrespective of whether third parties use wholly different brands in the typefaces. In turn, Mars Incorporated are able to use these typefaces in marketing campaigns to reinforce the brand identity of each product, as illustrated by the carbon neutral campaign referred to above.
Whilst the maximum duration of a registered design is limited to 25 years, within that 25 year period the registered design owner will enjoy exclusivity in the typeface. If the typeface is used consistently in marketing and promotional activities, the typeface itself may ultimately become distinctive of the brand owner moving forward, with Coca Cola and Kelloggs being well known examples of this.
Businesses who are developing new typefaces for their brands are therefore encouraged to consider securing registered design protection for those typefaces, alongside trade mark protection for the brands as presented in those typefaces, in order to supplement the IP protection in the brands. With a team of attorneys having extensive experience in design law and registered design protection, Marks & Clerk are ideally placed to advise further in relation to securing registered design protection for such branding and product packaging.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
