On food packaging a plurality of elements attracts our attention. People will first look at the brand and logo. But color will often grab the attention too and can be very distinctive compared to other products. Shapes, especially remarkable shapes, will also be element of consideration.
A motif can also be distinctive. Think of Burberry and Louis Vuitton. In food packaging a motif will often be on the second place when it gets to attention. In most cases the motif will be placed on the background whereas the logo and other elements will be placed in front.
Can a motive be protected? Yes, besides copyright we immediately think of a design registration. A trademark registration will be an option as well. But the use requirements are something to think about. Besides small changes, the motif will has to be used as registered. But in practise the use is in combination of several other distinctive features who are placed in front.
And that is exactly what happened with a motif of a salmon brand. The producer of the salmon registered the above motif as an European trademark but this mark did not survive an action for revocation (C 9096). The use, as below, was not sufficient because the motif was only used as a minor component in the overall package. As a design, the motif would not have suffered this problems!
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