Sustainable progress oftentimes compliments a brand’s marketing, but environmentally friendly packaging innovations can be copied by other companies without the appropriate legal protection in place. Reddie & Grose partner Gillian Taylor and associate Adam Kelvey tell us how patents, trademarks, and registered designs help the industry keep track of and protect unique ideas.

A recent survey by Deloitte found that one in three of us have stopped purchasing products, or even boycotted entire brands, because of ethical or sustainability-related concerns. With ever more consumers now scrutinising the sustainability of the products that they buy, the traditional practices of the packaging industry are being challenged.

For decades, packaging was used once and then sent to landfill – a practice now deemed unacceptable by environmentally conscious consumers and, increasingly, international governments.

However, the demand for higher standards of sustainable practice cannot come at the cost of the functionality or appearance of the packaging. Designers are therefore faced with the challenge of finding innovative solutions that incorporate sustainability without sacrificing quality.

This is no easy task. According to a report from the European Patent Office (EPO), the packaging industry is the single largest customer of plastics across Europe, while the global industry is responsible for producing 47% of the world’s plastic waste. Clearly, tackling the sustainability issue presents an opportunity to drastically reduce the industry’s environmental impact.

Using patent filings as an indication of innovation, the EPO report also identifies areas where designers and inventors are driving a revolution in sustainable packaging. For example, the annual number of European patent applications relating to circular packaging strategies increased by 27% between 2010 and 2019. The vast majority of these were dedicated to “zero waste” innovation, where the packaging is removed altogether, as in solid cosmetics and edible coatings.

However, there are also significant advances being made in plastic alternative materials and in plastic-free packaging. We can see some individual cases of sustainable innovations if we look closer at patent applications.

WO 2020/030683

The ButterflyCup, dubbed “the world’s most environmentally friendly cup”, is designed to be made of 100% paper. It is recyclable in a regular paper or cardboard bin and can be composted at home or in a food waste bin. Its innovation lies in the “horned” design of the cup, where the simple folding of the paper seals the cup, removing the need for a separate plastic lid.

WO 2012/148995

US packaging technology company Ecovative Design developed a biodegradable bioplastic that can be used as an alternative to plastic and polystyrene foams. Formed from mushroom mycelia, the bioplastic is malleable for a wide variety of industrial and consumer applications.

The live mycelium is fed agricultural waste to grow before being harvested, shaped, and baked. The process is innovative because the material is produced using a fraction of the energy to produce conventional foamed plastics, and it is fully biodegradable.

Patent Protection

Patents protect technical inventions and provide a robust mechanism to exclude competitors from utilising the same idea. However, companies often overlook packaging and fail to realise that their designs may have some technical aspects that can be protected by patents.

To be patentable, an invention must be novel and inventive. There are many aspects of packaging that can be inventive; for example, an innovator should ask themselves – is the packaging sustainable? Is it designed in a way that enables it to be easily stored and/or transported?

Does it have a closure mechanism that makes it more tamper-proof than existing closure mechanisms? Is it formed from a material that provides some advantage – for example, is it only permeable for specific gases?

Does the packaging extend the shelf-life of a product? Is the method for manufacturing the packaging more efficient than conventional methods?

If the answer to any of these is ‘yes’, it may be possible to obtain patent protection for your sustainable packaging.

Registered Designs and Trademarks

Registered designs protect the appearance of a product, including the packaging, and give the owner the power to prevent others from mimicking it. The design may cover the appearance of the product as a whole, or a part of a product affected by the features of lines, contours, colours, shape, texture of materials used. Registering a design is relatively quick and inexpensive and can add significant commercial value, especially if the appearance of the product is key to its commercial success.

Trademark protection is also invaluable when protecting a brand. Well-known trademarks are enticing prospects for people that want to benefit from a brand’s hard-earned reputation. A registered trademark gives the owner the right to take action against brands using identical or confusingly similar designs for the same or similar goods and services. This can help innovators create and protect a unique brand around their sustainable innovation.

The push for sustainability in packaging is driving new thinking with regard to materials, processes and design, all of which is creating the opportunity for innovation to be protected, so that it can be confidently shared with the wider world to help tackle the environmental challenges facing the packaging industry.