Walking down the cosmetics aisle, I came upon this label while looking for some makeup stuff (concealer, whatever) for my significant other. Take a look at what the label says. Now read it again. Am I the only one confused by the statement “Package design trademark and all copy © e.l.f. Cosmetics”? Maybe it’s the way I read, but it seems like the maker of this cosmetic is trying to say that the text and stuff that describes the cosmetics (including pictures) are copyrighted and the package design is trademarked. Or is it that the package design, trademarks, and all text are copyrights? Still a third way to look at it could be that the ® symbol in front of this whole clause is referred to the package design and all other trademarks. But there is still that phrase “and all copy” to haggle with.
© 2007 Acme Company
U.S. Pat. 9,999,999
“Acme” is a trademark of Acme Company
So each type of item that a manufacturer is laying claim to gets its own symbol, so to speak. Spaced across different lines, it’s easy to see what is protected, if you are a competitor seeking to determine exactly what it is you cannot copy or even resemble. Everyone else knows what rights you are claiming, and a court will award you additional damages because the person who copied you knew that there was a trademark/patent/copyright protecting an aspect of the product. After all, that’s one of main motivations for putting this kind of fine print on your packaging.
If you put the fine print on your box, you have to make sure it is correct. Providing broad statements like “All copy, logos, and product © ® and Patent Pending, Acme Company”. What kind of a notice is that? It doesn’t really do a good job of telling consumers or competitors what is being protected. Notice statements have to be clear about what is protected, meaning that you have to clearly articulate your rights. It’s a lot like describing a plot of land in a deed: it lets others know what rights or yours (or theirs).
And a lack of notice regarding which words, symbols, or logos are protected by a trademark can burn you later on if you are a plaintiff trying to recover damages from a competitor that used something of yours that you thought was protected by a trademark. For example in a recent case in Indiana involving a maker of machine pressure gauges with ornamental lens designs and a competitor, a federal court hinted that the defendant could avoid liability for infringement of the plaintiff’s ornamental design (which the plaintiff claimed as a trademark) if there was no notice provided by the plaintiff that this design was a trademark. According to the defendant in this case, because the particular design that was copying being copied was an older generation lens design that was no longer used, the defendant should not be liable for damages, at least for all of the years that they used the lens design without notice from the plaintiff that the lens design was protected as a trademark.
Thus we have a similar issue that could unfold here: not knowing what is protectable by trademark, a competitor could use the same packaging design and later assert that they did not know what was protected by trademark. A court could read the fine print slapped on the packaging by E.L.F. Cosmetics and find that the notice is insufficient. E.L.F. would be dead in the water.
What E.L.F. could have done is let an 8th grader advanced composition student write the trademark notice statement. If they did that, they might end up with a clear statement like the following:
© J.A. Cosmetics. All rights reserved.
E.L.F., “E”, and the product packaging are trademarks or registered trademarks of J.A. Cosmetics.
So there you have it. Because this case study is so unbelievable (and presents other puzzling issues), I will be looking at whether the relatively generic look of the packaging design can even be protected by a trademark.