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How Much Can My Product Look Like Another Company’s Product?

Logo for Quora, where Dana Shultz answered a question about "How much can my product look like another company's product?"This post discusses how much one company’s product can look like another company’s product without creating intellectual property problems. It largely copies a Quora answer that I wrote recently. Please see How much can my product look like another company’s product without infringing the other company’s intellectual property rights in that product?

Product Look: Trade Dress

As concerns one company’s product looking like another company’s product, the relevant intellectual property right is trade dress, which is a type of trademark right.

Wikipedia explains trade dress as follows:

Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.

Here is the heart of the answer to this question: Your product can be similar enough to let the consumer know that it fills the same niche as the other company’s product, but it can’t be so similar that the consumer thinks your product came from the other company.

Product Look: An Example

Major retailers such as Costco, CVS and Safeway are great at creating competing products that are sufficiently similar, but not too similar, to other companies’ products.

Consider this example:

The name brand product, Vita Coco, is on the right. Costco’s competing (Kirkland Signature brand) coconut water is on the left. Here is how Kirkland made its product sufficiently similar, but not too similar:

  • Both packages have blue backgrounds, but Costco’s blue is darker.
  • Both packages have coconut palm trees, but they are of different sizes and have different positions.
  • Vita Coco’s package says ”hydrate naturally”, whereas Costco’s says “Naturally Hydrating!”
  • Vita Coco’s package says “never from concentrate”, whereas Costco’s says “Not from Concentrate”.
  • Costco uses fonts that are different than those used by Vita Coco.
  • Costco’s text includes horizontal and vertical elements, whereas Vita Coco’s is entirely horizontal.

In summary, if a consumer sees these two products next to one another, s/he will know right away that (a) these are similar products, but (b) they are produced by different companies. Accordingly, Costco has not infringed Vita Coco’s trade dress rights.

This is part of Dana Shultz’s Canonical Questions on the Law series of questions and answers about legal issues, concepts and terminology.

Check out all posts about trade dress.

Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.