Intellectual Property Rights Over Packaging: Patent, Copyright or Industrial Design?

  • By:Tim Slingschröder
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Sometimes they come as an addition to another creation, sometimes they are a person’s main object for sale. Fact is that people sometimes create unique packaging and want to prevent others from copying it. The law offers multiple possibilities to arrange this, but which one applies depends on the features of the packaging one wishes to claim.

If the packaging material is new and inventive: Patent

Did someone design a special water-tight box, or a jar made out of some revolutionary, environmental-friendly material? Then he best tries to claim his Patent rights over it. Article 1 of Law 13/2016 about Patents describes how Patents are the Intellectual Property rights covering ‘ideas aimed at covering specific problems through the technological development of new products or processes’. Article 4 expressively adds to this that creations which’ main characteristics are aesthetic in nature rather than technological are not considered patentable inventions. This means boxes with mere unique images or shapes can not be protected through Patent rights, unless perhaps if such shapes would offer an inventive way to preserve the box’ contents. Are the shapes or the material of the packaging functional and sufficiently complex though, it is possible to obtain Patent rights over it.

A large benefit of Patents is that they usually protect a certain principle. If one acquires the Patent rights over the water-tight box for example, he will not only be able to prohibit others from making such a box, but also from creating any other objects containing the same water-resistant technique or material. Whether or not this is the case though depends on various factors, such as whether the box-shape itself is required to make the object waterproof and whether the Patent claim is formulated correctly, to name a few.  

If the design of the packaging makes it special: Industrial Design

Are the shapes of the packaging in question just designed to make it look interesting, and does it therefore not qualify as a patentable invention? Then an application for Industrial Design registration is the way to go. Article 1 of Law 31/2000 about Industrial Designs describes such a Design as a plan of shapes, lines and configurations which represent an object’s aesthetic features. The plan in case must contain guidelines for the production the object as drawn in it. Therefore, drawings and plans which cannot be or are not intended to be used for the production of a physical good are not suitable for protection through a registered Industrial Design.

An interesting alternative possibility might be a so-called ‘Trade Dress’. Trade Dress refers to packaging that due to its shapes and colours is often associated with a certain company or product. A good example of this are the iconic Coca Cola bottles, which are so distinct they practically function as a three-dimensional Trademark. In Indonesia, Trade Dress rights can be protected through Law 20/2016 about Trademarks, Article 2.

If the images on the packaging are its main feature: Copyright

Copyrights are generally the preferred Intellectual Property rights to claim over two-dimensional images. Where Patents and Industrial Design rights can only be granted to plans resulting in objects being applicable in modern industry, Copyrights can be claimed over sketches and drawings even if they will never result in any tangible product. This is further defined in Article 1 of Law 28/2014 about Copyrights, which describes any ‘scientific, artistic or literary work resulting from thought, imagination or skill’ as being suitable for protection through Copyright. Therefore, a Copyright is the best choice in case the images printed on it are a packaging’s main feature.

Like Patent rights could  stretch beyond protecting only the exact same box or jar as designed through patent law, Copyrights give their holders the exclusive rights on the image or text as on the packaging. This means others can not copy the image or text in question in any way – be it on a similar box or on any other object.

Combinations of rights

Vesting one type of right over a packaging does not exclude the possibility of legal protection through other rights as well. Did one create a packaging with both notable shapes and unique imaging? Then he can apply for both Industrial Design registration and Copyright registration – the former protecting the package’s shapes while the latter grants exclusive rights to the images printed on it.

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