PATENTLY OBVIOUS

Brands in the packaged goods sector have come a long way in the past few years. Although they can never be accused of taking the own-label alternatives for granted, many brand owners will admit to some complacency, assuming that neither the consumer nor the retailer could do without them.

But a few uncomfortable lessons have taught the sector that the status of brands is not unassailable. The showdown between Coca-Cola and Sainsbury’s over its Classic Cola concentrated minds, adding new edge to the protective role of marketing and pack design.

Fortunately, there has also been a perceptible switch back towards brands on retailers’ shelves, providing brand owners with the breathing space to rethink strategy.

“Lookalikes are nothing short of plagiarism and involve competitors seeking to give their product the attributes established in the consumer’s mind by years of investment by the brand leader,” says Edwin Beckett, chairman of the British Brands Group (BBG).

His view reflects a common determination to fight back, particularly where own-label products have cut into the market of an established brand. But the challenge facing new branded products is being taken just as seriously.

The 1994 Trade Marks Act (TMA) – which allows the registration of pack shapes, colours and even smells and sounds as trademarks – has fuelled interest in distinctiveness for brand protection still further.

As the Patent Office is quick to point out, the ability to sue for infringement of a registration is a much more powerful deterrent to would-be imitators than complex and possibly costly actions that may ensue.

Nestlé has just relaunched its market-leading peanut butter brand Sun-Pat with a new jar and flip-top lid combination from PI Design International (MW May 17). This brand has been typical of many, undermined by own-label competition in almost identical jars.

Having previously asked PI to redesign the Sun-Pat graphics, Nestlé recognised that the only way of differentiating itself from its competitors was to relaunch in a different pack. The five product varieties in “peanut-shaped” jars are being supported by a 2m campaign throughout this year.

A spokeswoman from Nestlé emphasises the impact and bene fits of the pack design, saying that by obtaining new trademark and design registrations “we believe we have obtained the best available protection”.

Steve Kelsey, creative director at PI, sees the broadening of the TMA as a logical extension of the way that “ownership” of pack shapes and colours has been developing.

“In this case, anybody wanting to get into the market by copying Sun-Pat would have to pay considerable sums for tooling and machinery. The cost of entry becomes significantly higher than with just graphics to imitate,” he says.

The same point is made by Design Bridge Structure business development manager Tim Corvin regarding United Biscuits’ McVitie’s Mini Jaffa Cake variant.

In the case of this product, packed in plastic “podules”, heat sealed and board wrapped, the entire packing line represents an additional cost, so acting as a barrier to entry for any would-be lookalike competitor. A number of details make the pack eminently protectable, according to Corvin. Since its launch a year ago, the variant has driven up the value of the McVitie’s Jaffa Cakes brand from 24m to 32m.

The 1994 Act had a tangible impact on the priorities of UK design consultancies in general and prompted jones knowles ritchie (sic) to set up its own 3-D structural design department. One project to emerge is the ribbed bottle for the Whitbread Beer Company’s Shotts flavoured alcoholic drink, based on the Fifties’ American soft drinks.

“Manufacturers need to project their brands and differentiate them in an overcrowded market,” says jkr creative director Ian Ritchie. “Structure is now a key element of packaging design.”

To make informed decisions about how to project brands with trademarks, manufacturers and designers need examples of both successful and unsuccessful applications to the Patent Office. But according to Paul Walsh, legal adviser to the BBG and partner with law firm Bristows Cook & Carpmael, the time it takes to process the new variety of trademark is proving problematic.

“By now, there should have been time for a lot of hard information and track records to have emerged,” he says. “But the registry is taking longer over the new-style marks and subjects them to much greater scrutiny.”

As a result, the only firm precedent is that set by the Coca-Cola contour bottle, where years of use and determined lobbying before the passing of the 1994 Act set it apart from any other packs currently under consideration.

While PI’s Kelsey advises his clients to file for 3-D trademarks, provided the pack is sufficiently distinctive, he cautions that it is a long-term objective and difficult to achieve without proof of use.

Little comfort is offered to brand owners by the examples of trademark applications which have been turned down. Procter & Gamble has had three applications rejected for floor cleaning products after the Patent Office ruled each was “debarred from registration… because it is devoid of distinctiveness”. Application was made in November 1994 and following objections and a hearing, the final decisions emerged from the Patent Office in February this year.

There was, the Registrar says, no evidence of use of the marks, and in turning down the P&G packs the Patent Office refers to “a natural distinction to allow any person to obtain by registration under the TMA a monopoly in what others may legitimately desire to use”.

But manufacturers can take heart from a judgment in the Netherlands, where a competitor which had imitated Van Den Bergh’s registered Becel pack. The rival was forced by court injunction to remove its product from supermarket shelves and destroy it.

BP’s successful registration of the green and yellow colour combination for its forecourts has alerted many established product brands to the protective potential of specific shades. “It will be interesting to see how the courts cope with this,” says Walsh. “Are you limited to, say, three Pantone colours, or is use of the next shade sufficient to infringe the trademark?”

While Coca-Cola and Virgin have opted for protectable 3-D bottle shapes, which are a powerful ally in advertising development and in creating consumer recognition, Pepsi has concentrated on graphics, and in particular its dominant blue. The thinking behind this could be that colour is more easily established across worldwide markets than shape, and so offers a faster track to “ownership” in a de facto or legal sense.

A new dimension to Europe-wide intellectual property rights was created when the European Union trademark office opened for business at the beginning of this year. By establishing evidence of use in one territory, brand owners can extend trademark registration to the entire EU. Naturally, the scale of objections to the application is likely to be that much greater.

However, many packaged packs do successfully run the gauntlet of the UK registration procedure, it is clear that the broadening of the TMA has focused attention on pack structure to an unprecedented extent. The TMA also reinforces a legal armoury which already includes patent protection of the pack components and design registration.

The physical properties of the pack have been fundamental to the success of Dairy Crest’s Frijj range of fresh milkshakes. From the outset, new product development (npd) consultancy Springett Associates was after an original look and feel which would in itself sell the product.

“The shrink-wrapped sleeve feels quite different, combined with the smooth curves of the bottle in your hand,” says designer Antonia Eckersley.

“Packaging shape and feel are completely underused as brand identifiers,” says Springett’s director of marketing Kate Killeen. “Brand owners will certainly have to be more adventurous – and designers more inventive – about making brands ownable in new ways.” In the case of Frijj, this has meant applying for registration as a trademark.

But tempering this frenzy for differentiation and distinctiveness are a number of criteria which cannot be ignored in any design and production process.

With a new product such as Frijj an identity has to be created from scratch, but with a product relaunch, a major concern for the brand owner is that the equities and heritage of its brand should not be lost in the pursuit of a new image.

In the case of Sun-Pat, careful research suggested that response to the new design would be strong, vastly outweighing any loss of recognition for the consumer.

For relaunch designers, the worst headache is often the manufacturer’s insistence that it uses its production line, and exactly the same product, for own-label goods. But whether it is for a new or relaunched product, companies should never lose sight of the practicalities. Making your bottle different is one thing, but making it so different that it falls over is quite another.