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How Can I Protect the Shape of My Distinctive Packaging in NZ?

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The appearance of product packaging can make a huge difference to the marketability of your goods. This is especially the case for unique packaging, with some famous examples being the Coca-Cola bottle or Toblerone chocolate. Therefore, if you have interesting packaging for your goods, you may consider securing it with intellectual property (IP) protections. This article will take you through some of the key ways you can protect the shape of your distinctive packaging in New Zealand. 

Trade Mark Protection

One of the most common or accessible ways to protect your packaging shape is by registering a trade mark. To do so, there are specific legal requirements you must meet. 

Firstly, you must ensure that your trade mark is capable of being distinguished from other traders. In other words, the your unique packaging shape must be the key element that makes your brand unique from your competitors. To ensure your trademark is distinguishable, it cannot already be used. You can confirm this by conducting a trade mark search, which in New Zealand, is available on the Trade Mark Check

Secondly, your trade mark cannot already be present in the marketplace. This usually occurs where the shape of your packaging may be common to the industry in which your business is operating. Where this is the case, it would be unfair for your business to have exclusive rights to a particular shape if multiple other businesses also need to use it. A common example of this is the shape of a standard wine bottle. Similarly, if your shape trade mark cannot have significant functional features that other traders in your industry require for their own operations. 

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Other Types of IP Protection

While a trade mark is one way for you to protect the shapes of your goods, several other types of IP may be suitable options for distinctive packaging. We explain these in more detail below. 

1. Copyright

Copyright is a form of IP that protects creative works, including music, original writing and visual images. Unlike different types of IP rights, copyright exists automatically in New Zealand. Further, there is no registration process, so there are no costs involved with asserting your rights. 

However, if you need to enforce your copyright, you will need to be able to show that actual copying of your packaging shape took place. This can often be difficult to do, making copyright rights more expensive to enforce than registered rights, such as a patent, design registration or a trade mark.

It is also important to understand that New Zealand is one of the few countries where copyright in an industrial design is recognised. In other countries, three-dimensional reproduction of industrial designs is not protected by copyright law. This means one potential downside to copyright protection is that it will only be applicable to New Zealand. If an overseas trader uses your packaging, you may not be able to enforce your rights with copyright.

2. Design Rights

A design registration protects the way your packaging looks. In New Zealand, design rights will give you exclusive rights to the look or shape of your packaging for up to 15 years.

There are some conditions to registering your design rights, including that:

  • the packaging design must be original; and
  • you must not have disclosed it publicly before filing your application.

The design registration process involves submitting drawings or photos showing your design to the Intellectual Property Office of New Zealand (IPONZ). Once registered, your packaging can be marked with the design registration number to prevent people from copying it. 

3. Patent Protection 

As aforementioned, the shape or packaging of an item cannot be registered as a trade mark where it improves functionality. However, you may be able to protect this functional aspect through a patent instead. This is because rather than protecting visual elements, patents pertain to unique devices or processes and inventions. Importantly, though, the threshold for patent protection is high. It requires you to develop an entirely new packaging material or a new way for your goods to be dispensed from your packaging. 

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Key Takeaways

Uniquely shaped packaging can be an effective way to garner attention for your product and build your brand identity. If you have designed interesting packaging and wish to have exclusive rights to it, you may consider using IP protections. Some key forms of IP protection for the shape of your goods include:

  • trade marks;
  • copyright;
  • design rights; and
  • patent protection.

It is important you understand what each type of IP secures and their registration processes. This ensures that competitors cannot make use of your unique design. 
If you need assistance protecting your work as an artist in New Zealand, LegalVision’s New Zealand IP 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 0800 005 570 or visit our membership page.

Frequently Asked Questions

Can I get a trade mark for the shape of my packaging?

It is possible to register a trade mark for shapes of goods. Like all trade mark registration, you will need to meet the relevant legal requirements. This includes demonstrating that the shape of your product is capable of being distinguished.

How can I protect the shape of my distinctive packaging in NZ?

Some key forms of IP protection for the shape of your goods include trade marks, copyright, design rights and patent protection.

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Emily Young

Emily Young

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