Children's Products: Branding and Trademark Considerations

by Stinson Leonard Street
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The Consumer Product Safety Improvement Act (CPSIA) and the Child Safety Protection Act (CSPA) were enacted to establish regulations and testing requirements for children’s products. While there are no express restrictions with respect to branding of children's products, these regulations and related laws should be taken into account when choosing brand identification motifs, also known as trademarks, for those products.

What is a Trademark?

A trademark can be a word, series of words, logo and/or design in connection with the sale of goods (trademark) or services (service mark) in commerce. See 15 U.S.C. §1127. The purpose of a trademark is to identify the source of goods or services and distinguish them from those of others. A trademark prevents another party from offering a product or service using a similar brand. Consumers use trademarks to associate a particular product or service with a specific organization.

The Intersection Between Trademarks and Children's Products

Given the function of trademarks, companies prominently use their marks in a variety of ways. Trademarks can appear on product packaging, in advertising for products or services, or on the products themselves.

A threshold requirement for the applicability of the CPSIA, CSPA and related laws is a determination that a product is a "children’s product1." The Consumer Product Safety Commission (CPSC) has the ultimate say in whether a product will be declared a "children's product." One of the factors considered by the CPSC in this determination is whether the product is represented in its packaging, display, promotion, or advertising as intended for use by children 12 years of age or younger. Therefore, it is essential that companies pay close attention to the trademarks, logos and designs they choose to place on the packaging or use in the advertising of their products.

Specific Considerations When Choosing a Trademark

Businesses need to be mindful of the text, illustrations and other terms that comprise their trademarks if they appear on product packaging or in advertising. An express statement on a product package declaring that the product is designed for or intended to be used by children 12 years old or younger typically means the product will fall within the definition of a children’s product. However, even without such a statement, the inclusion of certain design elements on packaging and in advertising can lead to a finding that a product should be considered a children’s product. In other words, certain decorative features that appear in a logo or design of a product may be enough to transform what would otherwise be a "general use" product2 into a children’s product. Some of these elements include:

  • Colors commonly associated with children, such as pinks, blues and bright primary colors;
  • Decorative motifs commonly associated with childhood (animals, insects, small vehicles, alphabets, dolls, clowns, and puppets); and
  • Features, like cartoons, which do not necessarily enhance the product’s utility but contribute to its attractiveness to children 12 years of age or younger.

The more of these characteristics the product and/or its packaging include, the more likely it will be considered a children’s product.

The prominence, placement, or other emphasis given to a product's intended use or its intended users on the packaging and in advertising are also considered by the CPSC in determining whether a product is a "children's product." Specifically, the CPSC will consider which images or messages related to the product are the strongest and most obvious to the consumer at the point of purchase. For example, if a game contains a label with large, brightly-colored letters and a cartoon figure on the front of the box, the game would likely be considered a children's product even if it has a small picture on the side panel of both teenagers and children playing the game. The labeling on the front of the box likely sends a stronger message to consumers than the picture on the side panel.

NOTE: A label designating a product as not intended for use by children 12 years or younger does not, by itself, save a product from being considered a children’s product.

Impressions

If companies are not careful, prominently displaying certain trademarks on packaging or featuring them in advertising may result in their product being considered a “children’s product” for purposes of the CPSIA and CSPA. Trademarks are valuable assets that convey a business’ reputation. However, if there are concerns about whether a product could be mistaken for a children’s product, the best time to address such concerns is as early as possible in planning the trademark. Companies should adopt a logo or design that does not incorporate, or minimally incorporates, the motifs discussed above when marketing a product that is not specifically designed or intended for use by children 12 years of age or younger. Conversely, companies marketing a product that is intended for children 12 years of age and younger may consider some of these motifs in developing their trademark design.

 

1 "Children's products" are those designed or intended for use by children twelve (12) years of age and younger. 15 U.S.C. § 2052.
2 A "general use" product is any consumer product not designed or intended primarily for use by children 12 years of age or younger. 16 CFR § 1200.2 See also the CPSC's website

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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