table of contents
(1) Introduction
Needless to say, food comes in a variety of shapes, including round, square, and cone-shaped. They are also sold in ingenious packages of various colors and shapes. Some famous products can be recognized just by looking at their shape and packaging, even without looking at the product name. Food shapes and packaging designs can be protected by design rights.
We hope that this article will be helpful to those who are considering filing a design application for food shapes and packaging.
(2) Food designs
The appearance of food is just as important as its taste. Sales depend on how delicious the food can be made to look. In the food industry, the designs that can be protected by design rights include the design of the food itself and the design of the food packaging. In order to be protected by a design right, it is necessary that the shape, pattern, or color of the product is "visually aesthetic." In addition, it is necessary that the product has "industrial applicability," and if the product cannot be mass-produced, it will not be protected by a design right.
①Design of the food itself
Food design protects the design of the food itself. Examples of products that have actually been registered include squid with a skewer, chocolate, and solid curry with a distinctive shape.
★ Comb-attached squid
Group A (manufactured foods and luxury items)
(Yocchan Foods Co., Ltd., Registered Design No. 1224266)
★Chocolate
Group A (manufactured foods and luxury items)
(Godiva Chocolatier Inc., Registered Design No. 1484401)
★Specially shaped solid curry
Group A (manufactured foods and luxury items)
(S&B Foods Co., Ltd., Bespack Co., Ltd., Registered Design No. 1452329)
②Packaging design
Design rights are protected not only for the shape of food products but also for food packaging.
Specific examples include instant ramen packaging, seasoning packaging containers, and natto containers. Even if the packaging has a special form or a common shape, it can be protected by a design right if the design depicted on it is deemed to be innovative and original.
In addition, as in the soy sauce packaging shown below, while you can receive patent protection for keeping soy sauce fresh, you can also obtain design rights for the packaging container, which will provide even greater protection.
★Instant noodle packaging
Group F (office supplies and sales items)
(Sanyo Foods Co., Ltd., Registered Design No. 1443372)
★Soy sauce packaging
Group F (office supplies and sales items)
(Yushin Co., Ltd., Registered Design No. 1377043)
Group F (office supplies and sales items)
(Kikkoman Corporation, Registered Design No. 1443689)
★Natto packaging container
Group F (office supplies and sales items)
(Mizkan Co., Ltd., Registered Design No. 1355159)
(3) Measures against counterfeit food and packaging products
In recent years, counterfeiting of not only characters and branded products but also food and food packaging has been increasing overseas. Not only are the shapes of food products imitated, but there are also cases where the packaging and labels are imitated and completely different contents are sold, and there are many products on the market that do not use trademarked brand names but use similar packaging.
Japanese food products are particularly popular due to their high quality, so sales can increase if the packaging says "Made in Japan" or if the product is sold in packaging that imitates that of food actually sold in Japan.
Products that imitate Japanese food products and packaging can be of inferior quality to the "real" products sold in Japan, which could lead to a loss of credibility for the entire manufacturing company.
If you have a design right, you can take effective measures against such counterfeit products. Furthermore, even if there is no infringement of trademark rights, you can exercise injunctions based on design rights on the grounds that the packaging is similar.
(4) Comparison with three-dimensional trademarks
Food and food packaging can be protected semi-permanently by registering a three-dimensional trademark. In fact, some products have already been registered as three-dimensional trademarks. However, in the case of three-dimensional trademarks, if the shape of the food or packaging is judged to merely represent the shape of the food or packaging, it cannot be registered as it lacks the ability to distinguish the product from others, and unless the shape is extremely distinctive or well-known nationwide, it will be difficult to obtain one. The following examples of registrations were registered after the Japan Patent Office recognized that the product is well-known nationwide.On the other hand, design rights can be registered even for the shape of the food itself if it is deemed novel and difficult to create.Because,It is easier to register than a three-dimensional trademark.
With regard to the shape of food products, one possible strategy would be to prevent counterfeiting through design registration, and then, once the shape has become well-known nationwide through years of use, to obtain a three-dimensional trademark to protect the shape semi-permanently.
Trademark registration No. 6031305 (Trademark Law Article 3, Paragraph 2 applicable)
*I'm sure you remember the news that Meiji Co., Ltd.'s "Kinoko no Yama" was registered as a three-dimensional trademark.
<Examples of when registration was not approved>
Intellectual Property High Court, November 18, 11 (Heisei 29 (Gyo-Ke) No. 17)
*The Japan Patent Office initially approved the registration, but after an invalidation trial was filed, the Intellectual Property High Court determined that the shape was common to Japanese sweets and that the product had not yet achieved nationwide recognition, and therefore revoked the registration.
<Examples of design registration>
Design Registration No. 1484789
It is a new shape of soft serve ice cream, and registration will be granted without proof of national fame.
Other examples of registrationsCLICK HERE .
(5) Obtaining design rights overseas – What is the Hague Agreement (Geneva Act)?
If you want to protect your design, but would like to apply for protection not only in Japan but also overseas, but are worried that overseas procedures will be expensive and time-consuming, here is some good news for you. Since Japan joined the international Convention for the Protection of Industrial Designs (Geneva Act) in 2015, it is now possible to obtain protection with just one application procedure when filing applications in multiple contracting countries.
As of March 2, 3 countries and government agencies are members of the Geneva Act of the Hague Agreement, of which Japan is a member. Using this treaty simplifies the international design registration procedure, which is extremely useful when expanding overseas. If you are thinking of spreading your brand overseas or exporting your products, why not consider international registration depending on the country of application?
For further information, please read CLICK HERE .
(6) Important rulings regarding food packaging design
(Heisei 28 (Gyo-Ke) No. 10034, Judgment delivered on September 21, 2016)
As shown in the reference diagram below, a design application was filed for a “frozen dessert in a container” consisting of a container, mochi, bean paste, etc. The Japan Patent Office rejected the application on the grounds that it did not meet the requirements for a single design of one object. In response, the Intellectual Property High Court ruled to revoke the decision, stating that “a ‘frozen dessert in a container’ is recognized as an article with one specific use and function in accordance with accepted social standards, and the ‘frozen dessert’ part alone cannot be considered to be an article with a use and function independent of the ‘container’ part.”
<Reference diagram>
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Design Registration No. 1571832
When the examination guidelines were revised on January 2019, 1, the concept of one article, one design was clarified and its operation was reviewed. As a result, food containers that are manufactured, used, and distributed together with food products can now be protected as a single design.The creation of combinations of containers and food products can now also be protected.
*From the Design Examination Guidelines
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”HARAKENZO more " We are well-equipped to do our utmost to protect the intellectual property of those in the food industry, so please feel free to contact us.