Using Colors on Labels

"Dear Scotts Miracle Gro:
Thank you for not killing me."

Dear Rich: We're designing a label for a new environmentally-friendly solvent/stain remover that we plan to launch.  We're fine with the name of the product but we're concerned about the use of colors on the labels. Some of our team are afraid to use colors that are used by other companies because we've heard about lawsuits. Do we need to worry? Worry? We'd prefer that you saved your worrying for things like whether your bird feed contains poison (and the company that sold it knew about it). But yes, you should be diligent about avoiding the colors or trade dress of well known competing brands. What's the difference between colors and trade dress? This previous blog entry explains most of the important details. It's true that some companies use their color scheme as a means to pressure the small fry (hey, there's that company again). At the same time, a savvy media response may help speed resolution of such disputes. But, in terms of liability, you'll really only have to be concerned about color if you're stepping on the same hues (not just the same colors) or if you're matching the overall appearance of the competing product. On the other hand, some colors serve a function and are more difficult to monopolize -- for example, green as used on environmentally friendly products. (Or green as when used on medical marijuana -- hey these guys are everywhere.)

Can Package Insert Get Copyright?

Dear Rich: I just wonder whether a package insert for drugs is copyrightable in the U.S.? I understand that the package insert has a standard form and should include specific information, both of which are usually required by the FDA or law. Moreover, all the descriptions in the package insert are about factual issues, say scientific research results, ways to take medicines, etc, and most of them can only be described in wording of very limited choice. In this case, can we also put some wording like "copyright reserved" in the package insert and claim copyright over the package insert? Package inserts can be protected under copyright law (as this article points out -- check out the "Warnings and Instructions" section). However, you may have trouble protecting the legally mandated requirements of the insert if, as you note, there are limited ways to express the statement. When that's the case, the merger doctrine kicks into effect and others can get away with copying.
What about adding 'copyright reserved'? You can add any wording you like about copyright being reserved -- that may scare off some interlopers -- but that doesn't necessarily mean that a court will enforce your claim to copyright. It will all come down to whether you've demonstrated sufficient creativity and can justify your exclusive rights to the work.