The Law of the Label · Essay 08
The Packaging Question — Trade Dress, Design Rights and Passing Off
Four different rights are stacked inside one printed box, each with a different owner and a different way of failing. Most businesses hold one of them.
She had designed the pouch to sit close to the market leader — the same shelf colour, a similar device on the front, the silhouette recognisable at ten feet. It worked. The line paid for itself in a season. Two years later a newer seller did the same thing to her, closer than she had dared to go, and she called her lawyer expecting outrage and got arithmetic instead. No design registration, because the product had launched before anyone thought to file. No mark over the element actually being copied. And a passing-off claim that would turn on proving a reputation in a look she had partly borrowed in the first place. The tactic that built the brand was the one now dismantling it, and the law had been indifferent in both directions.
Paul Magaji · 8 min
Packaging is the asset in a private-label arrangement that everyone touches and nobody itemises. The seller briefs it, a designer draws it, the factory prints it, the regulator reads it and the consumer buys it — and at no point in that sequence does anyone ask the question the rest of this sub-cluster has asked about every other asset. What, precisely, is owned here, and by whom?
A look is not a right. It is a place where four separate rights might be standing, and in most businesses only one of them is.
Act One
Three words for one thing, and only one of them is ours
Nigerian founders discussing packaging protection tend to reach for trade dress, which is an American term of art with an American doctrine behind it, developed under American statute. The word Nigerian practice actually inherited is get-up — the overall visual impression a product presents: shape, colour, arrangement, the whole of the thing as it is seen before it is read.
The distinction matters for the same reason the distinction between private label and contract manufacturing matters. A borrowed word arrives carrying assumptions from the system that produced it, and the assumption smuggled in here is that get-up is a category of property. It is not. Get-up is a description of a factual state of affairs. It is not registered anywhere, it is not granted by anyone, and it is not owned in the way a mark is owned. It is, at most, a set of circumstances that may attract protection if a number of other things can be proved.
An earlier essay in this sub-cluster ended on the observation that the look of a product is a separate question from the name on it, and left the question here. This is that question, and the honest first answer is that packaging is not one asset. It is four, stacked in the same object, with different owners, different lifespans and different failure modes.
Act Two
Four layers in one box
Take a single pack apart and the rights separate cleanly. Each layer below protects something real, and each protects considerably less than the business assumes.
Layer One
The artwork
Copyright arises the moment the work is made and belongs to whoever made it — which is almost never the business that paid for it.
The illustration, the photograph, the drawn device, the arrangement of the panel: these are artistic works, protected automatically, with no registration required and nothing to file. That automatic quality is what makes this layer the one businesses most reliably lose. Nothing is ever due, so nothing is ever done, and the designer who was paid an invoice retains the copyright unless it was assigned in writing — a requirement the agreement essay treats as one of the three things that cannot be repaired later.
The second limit is one founders find harder to accept. Copyright protects an execution, not an idea. It reaches the specific illustration and not the concept behind it. A competitor who briefs his own illustrator to draw the same subject, in the same style, occupying the same position on the panel, has taken nothing that copyright can reach — he commissioned his own artistic work, and he owns it.
The Likeness
A rival can copy your idea precisely, so long as he pays someone else to draw it.
Layer Two
The shape and the container
An industrial design is registrable if it is new — and new means it has not been shown to the public before the application is filed.
Nigeria registers industrial designs under the Patents and Designs Act: combinations of lines, colours and three-dimensional form intended to be reproduced by industrial process and not dictated solely by technical function. The bottle silhouette, the closure, the moulded form, the ornamental pattern. Purely functional features are excluded, as is printed matter, which means this layer covers the object more than the label printed on it.
Two features of the Nigerian scheme, taken together, produce a trap with an unusually narrow escape. The first is novelty: a design shown to the public before filing is no longer new, and public showing includes the trade fair, the pre-launch teaser, the influencer sample and the factory's own catalogue. The second is that the right to registration vests in the first person to file — expressly so, even where that person is not the creator. This sub-cluster has already met the stranger who files first in the context of names. Here the statute says the quiet part out loud.
Registration itself is largely a formalities process rather than a substantive examination for novelty, which means a certificate is a record that an application was made and not a finding that the design was new. It can be attacked later on precisely the ground nobody checked at the counter.
The Likeness
Launch, and the right is gone. Wait, and someone else may take it. The window is the fortnight between finishing the design and showing it to anybody — and it is nobody's job to notice.
Layer Three
The element that behaves like a mark
A device, a colour, a container shape can sometimes be registered as a trade mark — but only where it tells the buyer who made the product rather than what the product is.
This is the layer with the longest reach, because a registered mark is renewable indefinitely while a design right runs for a limited span and copyright eventually expires. It is also the layer with the narrowest gate. The test is distinctiveness, and the difficulty is that the most striking parts of a pack are frequently the least registrable: the colour of the fruit inside, an image of the product in use, a word describing what it does. The registry essay sets out how descriptiveness becomes the main source of refusal, and packaging elements sit closer to that line than names do.
What follows is a discipline rather than a filing programme. A business cannot register every element of its pack and should not try. It should identify the one element it would still want to control in ten years, whatever else changes, and file that.
The Likeness
The part of the pack you would most hate to lose is rarely the part anyone registered.
Layer Four
The whole look
Get-up as a totality has no register at all. What stands behind it is an action, and an action has to be won.
Passing off is the remedy for a look that was copied, and its structure — a reputation attaching to the get-up, a misrepresentation causing confusion as to origin, and damage flowing from it — is an English formulation Nigerian courts have drawn on rather than a Nigerian statutory test. Each of those three has to be proved, and the first is where new businesses fail.
Reputation in a get-up is not asserted, it is evidenced: how long the look has been in the market, how much was spent putting it there, what volumes moved under it, whether buyers actually associate it with one source. That is a documentary exercise, and it is expensive, slow and adversarial in a way that filing a form is not.
Which produces the layer's real character. Passing off is the protection available to a business that already has a reputation worth misappropriating. It is close to useless to a brand in its first year, at exactly the moment when its look is most worth copying and most easily taken.
The Likeness
The action that protects a look requires you to have already succeeded. It is not available to the business that is still trying.
Act Three
The direction nobody in this trade wants to discuss
An essay in a series about private label cannot honestly treat packaging only as something done to the reader. Proximity to the market leader is not an occasional abuse of the private-label model. It is close to the model's central commercial technique, practised at scale by retailers in every market that has own-brand goods, and it works for a reason that has nothing to do with deception in any moral sense: shelf recognition is coarse, buyers scan rather than read, and a pack that occupies the same visual territory as the leader gets picked up by people who were looking for the leader and are content with the alternative once it is in hand.
The legal line does not run where founders expect. It is not drawn at similarity, and a competitor is entitled to a great deal of it. Nobody can monopolise the colour that signals a flavour, the photograph of what is inside, the shape a category has settled on, or the words that describe what a product does. Those are the commons, and a private-label seller stands on them lawfully.
What the line is actually drawn at is misrepresentation about who made the thing. Similarity becomes actionable at the point where a buyer is led to believe she is buying the other business's product, or something the other business stands behind. That is a question about the total impression and the buying context rather than about any single borrowed element, and it is why two packs can share a colour innocently while a third, sharing less, crosses over. Consumer-protection law reaches the same conduct from a second direction, since a representation that misleads about origin is a misleading representation whatever else it is.
A business may take the category's common language freely. What it may not take is the answer to the question of who stands behind the product.
The uncomfortable symmetry is the one in the opening. A seller who built her position by sitting close to somebody else's get-up has, by that choice, weakened the reputation evidence she would need to stop the next entrant from sitting close to hers. The tactic is available in both directions, and it does not become less available once you have used it.
Act Four
Four decisions, three of them before launch
File the design before the pack is shown to anyone. Not before launch — before showing. The trade fair, the sample sent to a stockist, the teaser posted to build anticipation and the factory's own catalogue are all public showings, and each of them can spend a right the business never knew it had. If the design matters, the filing belongs in the production schedule between artwork sign-off and the first photograph.
Take the artwork assignment in writing at the moment of payment. The invoice and the assignment should be the same transaction. A designer asked for an assignment at the point of payment nearly always signs; a designer asked three years later, when the brand has become worth something, is being asked a different question, and knows it.
Choose the one element you intend to own permanently, and file it as a mark. A pack has a dozen candidates and a business has one budget. The question that sorts them is which element you would keep if the packaging were completely redesigned — because that is the element that is carrying the brand rather than decorating it.
Start the evidence file on the day of launch. Dated artwork, launch date, spend, volumes, the packaging as it stood in each period. Passing off is proved with records, and the businesses that lose these actions are rarely the ones without a reputation. They are the ones that had a reputation and could not document it, because the documents were made retrospectively by people who were busy at the time.
Passing off protects the business that has already arrived. Registration protects the business that has not. The younger the brand, the more of its protection it has to buy in advance.
The founder in the opening had done nothing unusual and nothing that the trade would call wrong. She had used the technique the model runs on, and she had assumed — as almost everyone in her position assumes — that a look which had become hers in the market had become hers in some other sense as well. It had not. Nobody had ever told her that the whole of her packaging was protected by an action she could not yet win, and that the parts of it she could have owned outright were available for a filing fee during a fortnight that had closed two years earlier.
This publication is educational and analytical. It describes how legal and commercial structures work; it does not advise on any particular matter, and nothing here should be relied upon as advice on a reader’s own affairs. The author holds commercial interests in the brand-building and private-label sector examined by this series.