Over at Fast Company’s Co.DESIGN blog, Christine Hall and Dale Doyle of Landor Associates offer some tips on getting the most out of packaging redesign, using their design of the packaging for Kraft Foods’ new MiO liquid water flavor enhancer as a case study. 
Among other things, Hall and Doyle recommend thinking about packaging as a project without an end date, and making the “evolution of packaging” a regular conversation. They also recommend partnering with a branding and packaging firm to identify the strongest aspects of a product and communicate those with the packaging. Finally, they suggest incorporating trends from other industries into packaging. By following these tips, MiO has become a $100 million brand for Kraft in just a few short years. We would add one more item to Hall and Doyle’s list: Protect your new packaging! In Kraft’s case, the food giant secured a federal trademark for the MiO wordmark (Reg. No. 4,168,532) for “pre-packaged preparations for making beverages, namely, fruit drinks, soft drinks, tea-flavored drinks, sports drinks and energy drinks.” Packaging may also be eligible for trade dress protection if it is either inherently distinctive or has acquired secondary meaning and is not functional. To be protectable, trade dress must be instantly identifiable in customers’ minds, which requires strong sales over several years and robust advertising. Like trademarks, trade dress protections can continue indefinitely as long as the trade dress serves to identify the source of the product. Kraft obtained several design patents that it can use to bridge the gap between product launch and trade dress eligibility: 
These patents may grant Kraft a monopoly to exclude others from using the claimed ornamental designs for fourteen years. Kraft can use this period to associate the MiO packaging to the MiO product in the minds of its customers, so that by the time the patents expire, the packaging will be eligible for trade dress protection. Awareness of the protections available for brand packaging designs will only grow in importance. Indeed, in recent years, there has been an apparent increase in trade dress infringement suits by brand owners against those who make look-alike packaging for store brands. Following Kraft’s lead, a brand company may consider using the complimentary protections of trademarks, design patents, and trade dress to ensure that products are protected to the fullest extent throughout their lifecycle.
This article was prepared by Andy Liddell (aliddell@fulbright.com / 512 536 3043), Saul Perloff (sperloff@fulbright.com / 210 270 7166) and Mark Mutterperl (mmutterperl@fulbright.com / 212 318 3183) of Fulbright’s Intellectual Property and Technology Practice.
