What Are the Most Important Factor(s) Brands Should Consider in Developing Packaging for Brand Protection?

Justin Gaudio

Shareholder, Greer, Burns and Crain

Brands should consider multiple forms of legal protections for packaging, including trade dress, design patents, and copyright. Trade dress provides protection for the distinctive “look and feel” of a product or product packaging. Brands can facilitate obtaining trade dress protection by promoting the uniqueness of the non-functional features of the packaging with verbal descriptions and promotional materials that emphasize the originality and exclusivity of the packaging design. Design patents protect non-functional, new ornamental packaging features for a period of up to 15 years. Finally, a copyright registration can protect aesthetic non-functional features viewed separably from the product itself.  It is important to register and train U.S. Customs authorities when such protections are obtained to facilitate enforcement.

David Yingling

Product Security
Johnson & Johnson

There are multiple factors to consider in the development of packaging for brand protection purposes. Here are a few of the most important ones:

  • Ask yourself, “How difficult is this packaging to mimic?”

    Remember that the illicit trader does not need to duplicate your packaging to be successful. They just need to mimic it and get it close enough to fool someone to purchase their product.
  • Do you have multiple ways to identify the product as yours?

    I’m talking about product security features. Just one feature is not going to do it in most cases unless it is extremely covert and yet widely available for anyone to authenticate. I ideally want to see multiple layers of technology that can be authenticated by various guardians throughout the supply chain. For example, not all of your guardians may have access to proprietary devices but all guardians should have access to a cell phone. You also don’t want to tell everyone about every feature. Share some but not all; similar to how the U.S. Department of Treasury operates.
  • Is a global artwork (i.e., the same exact artwork across the board) necessary or can I have geographical differences?

    Global artwork is fantastic for logistics, costs, etc. but is a nightmare from a brand protection perspective. Think about it this way- if someone diverts your product from country A to country B, how can you easily tell where that product was intended to be? Are you going to check each and every serial number? Not likely. And remember, customers generally aren’t checking serial numbers so you just significantly reduced the ability for consumers to help report suspicious activity such as a foreign language on a product in the local store, if you are using them for this intended purpose.
  • Do all components of your packaging have features?

    Think about a bottle of shampoo. That bottle has the container itself, the front label, the back label, and the cap = 4 components. It’s easy for the illicit trader to mimic 1 component but much harder to mimic all 4. Plus, you make it easier to spot situations where they might have 1 component genuine and the rest counterfeit (think: harvesting of product).

David Kellar

Kellar Consulting, LLC

A comprehensive brand protection program should include both overt and covert features integrated into packaging for authentication purposes. In addition, it is important to not make it easy for bad guys to harvest/buy and utilize original packaging with their counterfeit goods. Equal to security features, it is important for brands to safeguard their original packaging. Used packaging can be harvested at the point of sale by the seller who may offer the buyer “discounts” in shipping by eliminating the larger packaging or offer to sell “bulk” versions of products without the retail packaging. You must also secure all aspects of your packaging supply chain both internally and externally including the materials and files. These can get into the hands of counterfeiters when start-up or quality audit material is not properly secured. In these scenarios, the product’s packaging can be used by counterfeiters to enclose fake, or counterfeit, goods to be sold within the original packaging.
One way to avoid this risk is to design product packaging for single use with integrated tamper-evident features.  It’s also worth noting the importance of protecting the original art, tooling files, and tools used in production as they may be used in counterfeit packaging production. These files should be securely stored when  transferred to vendors. Another best practice is to destroy the tooling at the end of life prior to sending to a 3rd party recycling facility.  Protecting your brand from counterfeiting requires a combination of approaches, which requires focus on all aspects of the overall supply chain. 

Matthew Daum, PhD

Director, School of Packaging
Michigan State University

I think there are at least three important factors to consider. First is thinking through the implications of who you are asking to do the brand protection verification — the consumer? A third party? Your channel partners? And, where in the supply chain will the verification happen — at point of purchase? Somewhere upstream in the distribution network? For example, asking a consumer to verify at point of purchase may mean a lower check rate and higher odds of a counterfeit reaching a consumer. The choice will also influence the cost and complexity of the technical solution. An easy to discern, but difficult to duplicate solution may mean higher cost if relying on point of purchase consumer authentication.
Second is determining your strategy for the relationship between the package and the product. Do you want to link the authenticity of the product to the package, or just authenticate the package? If your packaging is prone to counterfeiting and consumers can’t be sure if the product inside is authentic with just a package verification, you many need to consider technical solutions that make a one-to-one link between product and package.
Finally, consider the supply chain(s) for your product. If you distribute through both ecommerce and traditional retail channels, your packaging may be different and require separate solutions depending on the relative control you have through the supply chain. For example, your e-commerce offering may not have a finished goods package (i.e., just a brown box with dunnage) and multiple distribution tiers transparent to you. That scenario requires a different solution than your shelf-ready branded package going through authorized distribution partners and into retail stores.