Our introductory lesson into trademarks really got me thinking about ordinary marks and signs. In reflecting I turned to none other than Apple, a company who is notorious for having unique “signs.” As an aside, I was doing some quick research and came across Apple’s own (as they make clear “non-exhaustive”) trademark list. I encourage you all to take a look: https://www.apple.com/legal/intellectual-property/trademark/appletmlist.html
Recall that per the Trademark Act section 2, a trademark means a sign or combination of signs used for the purpose of distinguishing goods from those of others and a sign per section 2 refers to words, designs, colours, holograms, mode of packaging goods, sounds, scents, tastes, etc. For the purposes of this discussion I will zero in on modes of packaging goods.
When I read “packaging” for the first time I again, immediately thought of Apple. I remember buying my first iPod back in the early 2000s and to this day I can still remember the packaging of that iPod mini (for the nostalgia it was the green one). The packaging of Apple products is quite distinct when compared to other brands (at least in my experience) – all of their products more or less come in similar packages (i.e., the white/black, minimalist, and rectangular box). There is a certain emotion and familiarity when it comes to Apple packaging whether it be an iPod from 2004 or an iPhone from 2022 – Apple packaging, in recent memory, has always had this aura of distinction.
We spoke about trademark as the law of the market and examples such as Apple are great illustrations of this idea. Signs combine to create the brands we know and recognize today – and it is clear that a lot of attention and time is given to signs, not only for trademark protection but to illicit brand and brand association. For example, Tom Vanderbilt writing for the Economist in “Zen and the are of opening an iPhone box” writes that: Apple’s headquarters has a “packaging room” where “for months “a packaging designer was holed up…performing the most mundane of tasks – opening boxes.” The goal? A box with the perfect drag and friction on opening to introducing an enticing pause as you unveil your new phone.” (see: https://www.economist.com/1843/2019/07/23/zen-and-the-art-of-opening-an-iphone-box).
(image sourced from: https://www.economist.com/1843/2019/07/23/zen-and-the-art-of-opening-an-iphone-box)
What happens however, when public policy meets “modes of packaging goods”? Hinchliffe illustrates that “once upon a time, a packet of cigarettes came with a glitzy logo, rich foil sleeves, and romantic language describing the pleasures within” (2013, pg. 131). Quite easily one can draw comparisons of this description to the definition of trademark and signs per the Trademark Act. Furthermore, one can contrast these signs to Apple’s manufacturing of an “enticing pause” into their packaging. The difference? Public heath (Hinchliffe 2013, pg. 131). Hinchliffe posits that once science linked the harm caused by smoking to one’s health, legislators tried to “curb cigarette marketing” (Hinchliffe 2013, pg. 131). One such method is “plain packaging, a mandatory standardized package with a certain appearance containing large health warnings” of which Canada was the first to try to introduce (Hinchliffe 2013, pg. 131). This is an example of where public policy and trademark law intersect. Where we see Apple evoking brand through its packaging, governments like Canada employ trademark (or the lack thereof) as a tool to limit promotion/branding and affirm public policy.
Sources:
Trademark Act, RSC 1985, c T-13, s 2.
https://www.apple.com/legal/intellectual-property/trademark/appletmlist.html
https://www.economist.com/1843/2019/07/23/zen-and-the-art-of-opening-an-iphone-box
Sarah Hinchliffe, “Comparing apples and oranges in trademark law: challenging the international and constitutional validity of plain packaging of Tobacco Products” (2013) 13:1 The John Marshall review of intellectual property law 129 at 131.
Communications Law