Copyright Office Denies Protection For "Unique" Product Packaging

If you are having trouble obtaining a federal trademark registration for a product's packaging, some lawyer has probably mentioned to you that copyright protection is a potential alternative or supplement. This is good advice – to a point. Copyright registration is relatively cheap, nobody will pester you about secondary meaning or use in interstate commerce, and you don't need consumer confusion evidence to prove infringement. However, when it comes to creative expression, copyright law can be a little more demanding.

For purposes of copyright law, product packaging generally falls into one of two categories. The first category is packaging that incorporates a cartoon, drawing or other artwork that is original enough to merit copyright protection in its own right. For example, General Mills' packaging for Cheerios incorporates a creative photograph (of a heart-shaped bowl containing Cheerios and strawberries), and that packaging (including the photograph) is