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Whether you are about to launch a new range of skincare products, a fresh release of alcoholic drinks for summer or an innovative selection of electrical tools, the way you present and market your products matters. You will likely invest considerable time and effort into developing a memorable name and visual packaging for your business. There can be immense value in the brand you are developing and promoting. The box your products come in is often the first point of contact for consumers. Packaging differentiates your products from your competitors, so it is important to protect it. This article will explore the steps you can take to protect your packaging.

Why is Protecting My Brand Important? 

Building a business and a favourable reputation is hard work. Your unique brand can become one of the most valuable assets of your business. Over time, a recognisable brand can attract new customers and set your business up for expansion. Having a strong brand allows your customers to identify your business and refer your products to others. 

Like any valuable asset, risks arise if you do not put adequate measures in place to protect your brand, especially those aspects of your branding you include on your product packaging. For example, failure to protect your brand may result in:

  • damage to your business reputation, by competitors providing substandard products in association with similar packaging; 
  • dilution of your brand value; 
  • competitors taking advantage of your hard work and attracting customers through the use of your branding, who may otherwise have gone to you; and
  • harmful online reviews, leading to rapid word-of-mouth transmission.

The Benefits of a Registered Trade Mark 

The most effective way of protecting your branding and packaging is by applying for a registered trade mark with IP Australia. A registered trade mark grants you an exclusive right to use your brand concerning the types of goods and services you offer. Your packaging might include a distinct logo, a fancy icon, a catchphrase or simply your unique business name. Having a trade mark registered for each aspect of your branding will give you security and peace of mind, without the risk of others taking advantage of your hard work and copying your branding. 

Registering a trade mark provides you with an enforceable right to stop others from using the mark in connection with similar goods or services as you. If someone is using your registered trade mark without your permission, this is known as trade mark infringement. In most cases where this occurs, sending a cease and desist letter is usually sufficient to stop infringement. 

Will You Be Selling Your Products Overseas?

Perhaps you have already entered into negotiations with a supplier overseas to stock your products, or maybe this is a future plan. Either way, it is a good idea to start thinking about global brand protection. You do not want to be in the position of being about to launch your products overseas, only to find out a competitor has registered a trade mark for the same or similar name or logo to you. If you have to rebrand internationally, you risk losing the recognition and status you have built. Considering brand protection overseas now can set you up for growth for years to come. 

You will also need to be careful about representing your trade mark registration on your packaging. In most countries, it is illegal to include the Ⓡ symbol (representing a registered trade mark) on your packaging in connection with your trade mark if you do not actually have a registered trade mark in that country. You should carefully consider where you use the registered trade mark symbol to ensure you comply with local laws.

Common Law Passing Off 

Without a registered trade mark, you do have some protection under the common law tort of passing off and the Australian Consumer Law. ‘Passing off’ occurs where another trader presents their goods for sale in a very similar way to you. It must mislead the average consumer into believing that their products are associated with your business. For example, suppose Samsung started using similar branding and packaging to Apple. Samsung may be ‘passing off’ their products as Apple products. 

However, it is often more difficult and costly to enforce these rights. A registered trade mark is a way of minimising future enforcement costs. Your registration can prove that the trade mark rights are yours.

Key Takeaways

The packaging of your products will likely include key aspects of your brand. This includes your brand name, logo or catchy slogan. You can protect these features by registering trade marks so that competitors cannot take advantage of your brand recognition. It is also crucial to think about your global reach, to ensure you put the appropriate international protection in place. You should speak with an intellectual property lawyer about your options. This is because a lawyer can explain the timeline required to achieve trade mark protection.

If you need help with trade marks or trade mark registration, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Can I register a trade mark for my packaging?

Certain key aspects of your packaging may be capable of trade mark protection. For example, this includes your brand name, logo, icon or slogan. 

What does a trade mark do?

A trade mark gives you an exclusive, legally enforceable right to your brand and can be an effective tool to stop copycats from mimicking your unique packaging design. 

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