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A walk down store aisles reveals a seismic shift in branding products, particularly in the personal care and beauty segment. In the 1990s, the mantra went like this: The bigger the brand name, the better. But today’s brand owners are de-emphasizing the visibility of even the most venerable brand names in favor of packaging that offers its own aesthetic appeal. Brand owners are aggressively competing to create packaging that is stylish enough to be featured out in the open as a design accessory. By doing so, they hope to transition these products from cabinets to countertops, sofa-side tables and living spaces.
Unusual oval-shaped boxes and bottles featuring graphics in a range of colors and styles to appeal to traditional and progressive consumers alike are gaining prominence. For example, Method, which has had a history of striking designs for both its personal care and home care products, rolled out its new line of bathroom-cleaning products— Le Scrub + Little Bowl Blue—so stylishly packaged that bath-accessory designers may soon find themselves out of a job. Method’s Le Scrub is advertised as “chic design” that “looks cool, sounds cool … it is cool.” As one advertising blog commented, “Suddenly toilet cleaning seems … sexy.”
As big, splashy logos fade, what is the impact on traditional branding strategies? In some of these newest packaging designs, the brand is visible only upon closer inspection of a bottle base, peel-off label or plastic shrink-wrap designed to be discarded. This de-emphasis on the brand name means that the development of unique and distinctive packaging is not just important—it is critical to product recognition, to promotion and to protection of intellectual property.
And it is important to note that any brand-development strategy must account for a basic tenet of trademark law: Not all trade dress is created equal. Product packaging and product configuration are treated very differently by the courts, and protection strategies need to reflect these distinctions. Traditional trade dress, i.e., product packaging, refers to the box, container or bottle holding or displaying a product. The shape of the Coca-Cola bottle, the color combination of the Tiffany box and ribbon, and the dark blue curvy-shaped perfume bottle of Armani Code serve as examples of protectable trade dress. Trademark law recognizes that consumers are accustomed to identifying product packaging as an identifier of source. Accordingly, product packaging can be entitled to protection immediately upon adoption if it is sufficiently unique e.g., “inherently distinctive,” to stand out from the competition.
Product configuration, on the other hand, refers to the design or appearance of the product itself. Because product configuration often forms a part of the product’s inherent appeal, function or commercial value, courts set a higher bar for protection. Thus, in its landmark decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., the Supreme Court concluded that product design, as contrasted with product packaging, can never qualify for trademark protection without evidence of an acquired secondary meaning. Beauty and home care product packaging generally falls into the category of packaging trade dress, rather than configuration trade dress. As a result, this lower threshold for protection will generally apply.