In the realm of intellectual property law, the term “get-up” or “trade dress” refers to the visual appearance of a product that makes it stand out it in crowd. We’re talking about any visual element that makes a product or packaging distinctive, including shape, configuration, colour, texture etc. Think of it as your product’s red-carpet look that gives it the unique edge others may try to copy.
Just like other forms of intellectual property, it is essential to protect the unique and distinctive get-up of products that make them stand out in the market. After all, these are key to enhancing both the business’ image and how its products are portrayed in the marketplace. Think of McDonald’s and its bright red fries packaging, or Tiffany’s with its blue boxes?
In Australia, get-up is protected under two laws: the common law tort of passing off and the Australian Consumer Law [ACL].
To establish a claim for passing off, owners need to show that the get-up is distinctive and has a reputation in the get-up. They also need to show that the unauthorised use of a similar get-up is likely to cause confusion or deception among consumers and that they have suffered a damage as a result.
Under ACL a similar test as above applies, however, owners also must show that the unauthorised conduct is misleading or deceptive.
In some cases, a product’s shape or aspects of packaging can become so recognisable that it can be registered as a trademark. An example of this is the good old Aussie Vegemite jar with its distinctive yellow and red packaging which has essentially stayed the same for over 100 years.
Savvy businesses can invest significant time and money in creating brand identities that are unique and different and if these are not then safeguarded, its almost like handing over the blueprint to your competitors and allowing them to dilute your brand and reputation.
At brandU Legal, your brand is our business. If you’d like advise on how to protect your get-up or believe that your product or packaging is being copied, contact one of our lawyers today.