In the realm of IP law, the term get-up or trade dress encompasses the visual identity of a product that sets it apart from the crowd. It encompasses any visual element that lends distinctiveness to a product or its packaging, including aspects such as shape, configuration, color, texture, and more. Think of it as the red-carpet attire for your product, giving it a unique edge that others may attempt to imitate.
Just like other forms of intellectual property, safeguarding the distinctive and unique get-up of products is crucial for establishing a prominent presence in the market. After all, these visual elements play a pivotal role in shaping a business's image and how its products are perceived by consumers. Consider iconic examples like McDonald's with its vibrant red fries packaging or Tiffany's renowned blue boxes.
In Australia, get-up is protected under two legal frameworks: the common law tort of passing off and the Australian Consumer Law (ACL).
To establish a claim for passing off, owners must demonstrate that the get-up is distinctive and enjoys a reputation. They also need to show that the unauthorized use of a similar get-up is likely to lead to consumer confusion or deception and that they have suffered harm as a result.
Under the ACL, a similar set of criteria applies, with the additional requirement that owners must prove that the unauthorized conduct is misleading or deceptive.
In certain cases, a product's shape or packaging elements can become so recognizable that they qualify for trademark registration. An exemplary illustration of this is the enduring design of the Aussie Vegemite jar, featuring its distinctive yellow and red packaging, which has remained largely unchanged for over a century.
Smart businesses invest substantial time and resources in crafting unique and distinct brand identities. Failing to protect these assets is akin to handing over a blueprint to competitors, allowing them to dilute your brand and reputation.
If you need assistance on protecting your get-up or believe that your product or packaging is being unlawfully copied, don't hesitate to reach out to us.