The EU General Court has upheld a decision that a Community registered design featuring three sizes of drinks can, registered by Ball Beverage Packaging, is invalid on the basis that it does not have individual character over earlier similar drinks can designs on the market.
IP protection for food and drinks packaging is a significant asset and prevents others from copying valuable designs. For example, Coca-Cola has a registered EU trade mark for its distinctive bottle shape, and Red Bull has a Community Registered design for its can design. However, it is important to consider very carefully what you are seeking to protect, and the preferred type of protection i.e. as a trade mark or as a registered design. In particular, registering the shape of packaging as a trade mark is not straightforward: Voss’ EU trade mark for the shape of its water bottle was cancelled on the grounds that it was not distinctive.
Whilst obtaining design protection for packaging is less complex, this latest decision affirms the importance of getting the representation of your design registration right (as previously seen in the Supreme Court’s decision in Trunki). For example, you should avoid depicting multiple designs in one registration. Instead, you should consider filing multiple design registrations together (there is a reduction in fees when doing so), where each registration features only one, not multiple, designs: such as a simple line drawing in one registration to protect the shape alone, and a photograph in another registration to protect the detail on the packaging. Further, you should ensure that different views of your design are registered, otherwise they will not be protected – what you file is what you get.
Read the full article on Business Shapers.