Only striking elements in product design ensures IP protection

Protectable ‘innovative’ product designs versus generic ‘innovative’ product designs – a product development warning.

What is innovation? According to Gary Hamel: “It’s the only insurance against irrelevance. It’s the only guarantee of long-term customer loyalty. It’s the only strategy for out-performing a dismal economy”. While Steve Jobs believed: “Innovation distinguishes between a leader and a follower”.

The global soft drinks market is led by carbonated soft drinks, with almost double the market size of bottled water. The carbonated soft drinks market is a stable but low growth environment. Unsurprisingly, it is a highly–competitive industry and so it is not uncommon for companies to try and differentiate their products with new flavours and innovative product designs.

Orangina’s new product packaging is undoubtedly innovative. The upside down can design encourages consumers to flip the product can by 180 degrees, causing the orange pulp inside each beverage to mix. This clever design achieves two things:

–   It enhances the taste of the beverage; and

–   Forces consumers to think and behave differently.

Further, by plastering Orangina’s trade marked logos and classic get up on the product design, consumers are educated about and exposed to the Orangina brand. Orangina is not the first to use innovative product designs to re-energise a product.

Another business making an impact through product design is Grenade (UK) Limited, a leading sports nutrition company. From its conception in 2010, Grenade’s marketing strategy involved leveraging its strong military-themed brand image. It was the first business to adopt this image and quickly recognised that any concept or idea which was important to the company should be protected with IP rights. Grenade understood the value of its IP – it was the foundation of the business – so took proactive steps to ensure it was safeguarded, whether that was in a trade mark, design or patent format.

As such, in 2014, Grenade successfully sought to protect its product packaging with a trade mark registration.

So, why can Grenade’s product packaging be protected and not Orangina? The answer is surprisingly simple. IP rights such as trade marks and registered designs provide owners with exclusive rights to use them, and the right to prevent other people or business from using those exact or confusingly similar rights without their consent. Because the rights are strong enough to stop others using a design, there are certain restrictions on those rights. IP rights do not extend to basic or common products or their shapes in trade. There has to be a striking element that makes a design depart significantly from the norm or customs of the sector, for it to be protectable. Even though Orangina’s product design is innovative in the sector, it is still a common can design.

On the other hand, Grenade’s design is clearly unique and distinctive in shape for the products sold and therefore is capable of protection. With some simple grooves, changes to the basic design or other design tweak, Orangina’s product could have been protectable and ironically more eye-catching to consumers as well.

In a crowded, mature marketplace with eager competitors and copycats all vying for competitive advantage and consumer attention, using IP to protect product innovation is fundamental if not essential to effective branding strategy. Brand owners must capitalise on new product innovation to maximise growth and increase consumer awareness.

It follows that in the early stages of product development, advice should be sought as to whether a prototype design is capable of IP protection or what changes would be required to obtain IP protection.

If you have any questions as to whether your products are capable of IP protection or have a query with regard to making your brand as strong as possible, please contact Lucy or Jason.