Introduction
The registration of shape marks, also known as 3D marks, is a contentious issue in the European Union (EU) and the United Kingdom (UK). Shape marks are non-traditional marks representing a product’s or packaging’s three-dimensional shape. They are considered more distinctive than traditional marks such as words and logos because they are less commonly used. However, shape marks are also more difficult to register because they require a higher level of distinctiveness and must not be functional. For instance, Suthersanen (2019), in one of his empirical studies, discusses the recent decision of the EU Court of Justice (CJEU) in the case of Doceram GmbH v. Ceramtec GmbH, which clarifies the interpretation of the “technical function” exclusion within Community design law.[1]. He suggests that the decision highlights the growing importance of competition-based considerations when shaping an IP right. However, the controversy surrounding the interpretation of the exclusion clause in different EU member states and the role of the designer’s freedom of choice and the use of the product in determining the technical function of a design are still paramount. Shape marks are often considered functional, and their registration may be prevented if the shape is dictated solely by the product’s technical function.[2]. According to Wee Loon (2018), the bans on the registration of certain product shape marks by some countries are not inconsistent with Article 6quinquies of the Paris Convention and Article 15 of the TRIPS Agreement; product shape marks are outside the purview of the Paris Convention and the TRIPS Agreement’s definition of “trademark” may not extend to product shape marks. In the EU and UK, the registration of 3D marks faces barriers due to their nature as non-traditional trademarks, which may make it difficult to establish distinctiveness.[3]. Functional and natural shapes are excluded from registration, which further limits the scope of registration for 3D marks. However, this does not necessarily mean that the bans on registering certain product shape marks are a breach of international law, as argued by Wee Loon[4]. Instead, it suggests whether product shape marks are eligible for trademark protection is still debatable, and there may be differing views on this matter. Indeed, narrow public policy considerations have facilitated the controversy surrounding the registration of shape marks in the EU and the UK and the barriers that prevent their registration. The paper also presents case examples to illustrate the challenges of registering shape marks in the EU and the UK.
Distinctiveness Requirement
One of the main barriers preventing the registration of shape marks in the EU and the UK is the requirement for distinctiveness. To be registered as a trademark, a shape mark must distinguish the goods or services of one undertaking from those of other undertakings. The distinctive character of a shape mark is assessed by considering whether it can be remembered by consumers and associated with a particular undertaking. A shape mark that is too common or descriptive will not be considered distinctive and will not be registered.[5]. This requirement for distinctiveness has been a significant barrier to the registration of shape marks in the EU and the UK. In the case of Philips v Remington, Philips attempted to register a three-headed rotary shaver as a trademark. The court found that the shape of the shaver needed to be sufficiently distinctive and was merely functional. The court noted that a three-headed rotary shaver was a common type of shaver and that consumers would not associate the shape with Philips. Similarly, in the case of Nestle v Cadbury, Cadbury attempted to register the shape of its KitKat bar as a trademark.[6]. The court found that the shape of the bar was not sufficiently distinctive to be registered as a trademark[7]. The court noted that the shape of the bar was functional and necessary to achieve a technical result, namely the ease of breaking the bar into individual fingers.
For instance, as opined by Paul McMahon on de facto barriers, such are relevant to the controversy surrounding the registration of shape marks, particularly 3D marks, in the European Union (EU) and the United Kingdom (UK)[8]. McMahon’s perspective explores the concept of de facto barriers, which are obstacles that arise from the practical application of laws or regulations rather than the laws or regulations themselves. In the context of intellectual property law, de facto barriers can make it difficult for businesses to register and protect their intellectual property rights[9].
In the case of 3D shape marks, several de facto barriers prevent their registration in the EU and UK. One such barrier is the requirement for distinctiveness, which means that the mark must be capable of distinguishing the goods or services of one business from those of another[10]. This can be challenging for 3D marks, which may be inherently descriptive or functional. Another de facto barrier is the requirement for graphic representation, which means that the mark must be represented in a two-dimensional format[11]. This can be difficult for 3D marks, which may have complex shapes or features that are difficult to represent in two dimensions. Furthermore, McMahon notes that the EU treaty prohibits quantitative restrictions and measures having equivalent effects between member states, which applies both to imports and exports[12]. While there are certain limited exceptions based on narrow public policy considerations, 3D marks are not one of them. These de facto barriers have led to controversy over the registration of shape marks, particularly 3D marks, in the EU and UK[13]. Some argue that these barriers are too restrictive and prevent businesses from effectively protecting their intellectual property rights. Others argue that the requirements for distinctiveness and graphic representation are necessary to prevent the registration of marks that could harm competition and limit consumer choice[14].
Schovsbo and Riis (2018) suggest that the limitations of public policy on trademark subject matter in the European Union (EU) are indeed controversial regarding how they affect the registration of shape marks [4]. The EU has implemented two sets of rules, the EU Trade Mark Regulation (EUTR) and the EU Trade Mark Directive (EUTD), to provide a single title for protection throughout all EU countries. However, the registration of shape marks has been controversial due to the difficulty in assessing their distinctiveness and potential for monopolization.[15]. The article highlights the barriers preventing the registration of 3D marks in the EU and UK, such as the need for distinctiveness, functionality, and public interest considerations[16]. That public policy considerations, such as consumer protection and fair competition, must be balanced with the interests of brand owners, and this is to mean that a balanced approach can be achieved through a case-by-case assessment of the distinctiveness and functionality of shape marks, as well as an analysis of their potential impact on the market[17].
A lot of writings and scholarly perspectives have been put forth, providing information on the protection of trademarks in the UK and the EU after the end of the Brexit transition period[18]. Since 1 January 2021, existing EU trademarks no longer protect trademarks in the UK, and the UK Intellectual Property Office (IPO) has created a comparable UK trademark for all right holders with an existing EU trademark[19]. UK businesses can still apply to the EU Intellectual Property Office for an EU trademark[20]. On this basis, there are various ways how to receive a comparable UK trademark, register a pending EU trademark application as a UK trademark, and claim priority and seniority, with advice to businesses to check for any pending geographical indications that could conflict with their trade mark application[21].
Before the end of the transition period, EU trademarks were valid in the UK, and UK businesses could apply for an EU trademark to protect their brand across the EU [5]. After the end of the transition period on January 1, 2021, UK businesses can no longer rely on their EU trademarks to protect their brand in the UK. To continue protecting their brand in the UK, businesses with existing EU trademarks must apply for a comparable UK trademark through the UK Intellectual Property Office (IPO)[22]. According to the IPO, by the end of January 2022, around 1.3 million EU trademarks had been cloned into comparable UK trademarks[23]. This indicates that many businesses have taken action to protect their brand in the UK post-Brexit. However, businesses that have not yet taken action to protect their brand in the UK may face significant challenges, including the potential loss of rights and exposure to infringement claims[24]. Therefore, businesses must review their trademark portfolio and take necessary action to protect their brand in the UK.
The Paris Convention of 1967 provides two ways for obtaining registration of a trademark in a country of the Paris Union other than the applicant’s country of origin[25]. One way is by registration under Article 6 of the Paris Convention, and the other is by registration under Article 6quinquies. However, each country of the Paris Union has the right to determine the conditions for the filing and registration of trademarks in its domestic legislation. This means applicants must comply with the country’s conditions where registration is sought [6]. The alternative way of seeking acceptance in another country of the Paris Union of a trademark registered in the applicant’s country of origin, afforded by Article 6quinquies A(1), is subject to two prerequisites: the trademark must be duly registered according to the domestic legislation of the country of origin, and it must be registered in the applicant’s country of origin. However, there is some disagreement about the scope of the requirement imposed by Article 6quinquies A(1) to accept for filing and protect trademarks duly registered in the country of origin “as is.” [26] Indeed, this information is specifically about registering shape marks or 3D marks in the EU and UK. However, it also attempts to highlight each country’s discretion in determining the conditions for filing and registering trademarks. In the EU and UK, 3D marks are more difficult to distinguish from similar marks and may need a more distinctive character.[27]. Another challenge is that 3D marks may be seen as restricting competition or creating a monopoly over the shape of a product[28]. Therefore, the EU and UK have specific requirements and criteria for registering shape marks and 3D marks. These requirements aim to ensure that the mark is distinctive, not functional, and not in conflict with the prior rights of other trademark holders.
Functionality Requirement.
A shape mark cannot be registered as a trademark if its shape results from the nature of the goods themselves, the need to achieve a technical result, or the need to obtain a technical result. This means that a shape mark that is essential to the use of the product or that gives the product a technical advantage cannot be registered as a trademark.
The functionality requirement has been a significant barrier to the registration of shape marks in the EU and the UK. In the case of Lego v Mega Brands, Lego attempted to register the shape of its classic brick as a trademark.[29]. The court found that the shape of the brick was functional and necessary to achieve a technical result, namely the interlocking of the bricks. The court noted that the shape of the brick was necessary to allow the bricks to be stacked and connected and that the shape was not distinctive. In the case of Dyson v Hoover, Dyson attempted to register the shape of its vacuum cleaner as a trademark. The court found that the shape of the vacuum cleaner was functional and necessary to achieve a technical result, namely the efficient collection of dust and debris.[30]. The court noted that the shape of the vacuum cleaner was necessary to allow the machine to be effective and that the shape was not distinctive.
For instance, according to Fhima (2020), in the Brompton Bicycle copyright infringement case, various concerns are being raised about the registration of shape marks and the barriers preventing the registration of 3D marks in the EU and UK[31]. The case asks whether copyright protection is available to functional shapes, i.e., those necessary to achieve a technical result, and seeks clarification of which factors are relevant to ascertain whether a shape is necessary to achieve a technical result. The Advocate General’s analysis highlights the problem of overlapping (cumulative) protection of copyright, design, and patent protection copyright has a much longer period of protection. If designers could claim this no-cost, no-formality, long-lasting protection for industrial objects, they would have no incentive to use the patent and design systems. Moreover, the edges of the subject matter of copyright are fuzzy without the registration detail, and legal certainty would be compromised. However, there is a suggestion as to a negative convergence approach to the issue of excluding functional matter under EU trademark law, noting that the extent of his reliance upon trademark doctrines in the different contexts of copyright without thoroughly exploring the implications is open to criticism.[32]. Therefore the issue of registration of shape marks is considered controversial as per the perspective, and as such, the barriers need to be further clarified and examined.
In the same regard, De Pauw (2019) discusses a case that addresses the barriers to registering 3D marks. Specifically, the focus is on the criteria used by the General Court to determine whether a Plant Variety Denomination (PVD) can be considered an essential element of a contested mark. The General Court’s decision was based on the notion that a PVD becomes the generic designation of a variety and should remain available to all traders to describe their goods. The emphasis is that a PVD cannot be considered an essential element of a contested mark if the distinctive character of the mark is based on other elements of which it is composed. This decision implies that a PVD will only be considered an essential element of a contested mark when it is the only element of the mark, the dominant element, or the other elements are negligible. The criteria used by the General Court to determine whether a PVD is an essential element of a contested mark could also be applied to other types of shape marks, underscoring the importance of ensuring that a shape mark does not monopolize the visual outcome of a once patented method. This is particularly important to preserve the availability of the method to all traders offering such goods.
The main function of trademark law is to ensure market transparency by allowing distinctive signs to exclusively indicate goods or services from a single source of origin[33]. This enables trademark proprietors to identify their offers clearly, and consumers can quickly identify and choose their preferred goods or services. Signs that deceive consumers reduce the efficiency of the market because consumers inevitably purchase the wrong product[34]. However, trademark protection must always be balanced against other core values, such as free expression, consumer information, and free competition[35]. The barrier here is the requirement for distinctiveness; albeit this has been discussed before, registration of a 3D mark requires it to have acquired distinctiveness through use, which can be difficult to prove to trigger its consumption.
According to Anemaet (2020), the likelihood of confusion provision is directly related to preserving fair and undistorted competition. This provision ensures that trademark rights do not affect social and cultural use forms. Trademark limitations also aim to balance the trademark proprietor’s interests and free movement of goods and services within the internal market and the competitor’s interests in using a sign for legitimate purposes in accordance with honest practices. In principle, trademark law and free competition do not conflict.[36]. Trademarks provide information about the commercial source of goods or services and enable consumers to repeat satisfactory purchases[37]. Trademark owners are stimulated to keep the quality of their goods or services high and invest in them. Competitors can choose a different sign if they want to offer their goods and services on the market freely[38]. Therefore, it can be argued that the registration of shape marks is not controversial per se, but rather it requires a balance between trademark protection and free competition.
Simon Fhima and Ilanah discuss the controversy surrounding the registration of shape marks in the EU and UK. They revisited the CJEU’s interpretation of the natural shape exclusion (also known as the first indent) in the Hauck decision of 2014. The CJEU held that a shape with essential characteristics that are inherent to the generic function or functions of such goods must not be registered as a mark[39]. The CJEU’s judgment in Hauck must be read alongside the corresponding Advocate General’s opinion, which reveals that the first indent aims to prevent the registration of basic shapes that must be kept free to maintain a competitive market. However, neither the CJEU nor the Advocate General’s opinion helps to identify what these basic shapes are[40]. That the approach taken by the CJEU finds support in the psychological psycho-aesthetic literature, where basic or prototypical product shapes are recognized as those that reduce information retrieval costs and are particularly attractive to consumers. Therefore, the CJEU’s first attempt at blocking the registration of basic shapes in Hauck is not a model of clarity; the concept is worth persevering with and developing, given its recognized real-world value and significance.[41]. In other words, the registration of shape marks is controversial because it involves identifying basic shapes inherent to the generic function or functions of such goods and must be kept free to maintain a competitive market. However, the need for more clarity on these basic shapes is a barrier preventing the registration of 3D marks in the EU and UK.[42].
Consequently, Calboli (2018) highlights the negative impact of the protection of non-traditional trademarks (NTTMs) on market competition.[43]. Granting exclusive rights to NTTMs frequently results in preventing competitors from copying similar styles and product features, which generally protect product design and aesthetic product features (such as colors, patterns, and shapes)[44]. This ultimately supports a system of intellectual property protection that promotes standardization rather than creativity and innovation in product development in various creative industries, including but not limited to the fashion industry.[45].
The registration of NTTMs leads to a monolithic effect on product and design development, inducing businesses to standardize the aesthetic features of their products and repeatedly use them on their products to acquire the necessary level of market recognition (distinctiveness) required to be protected as trademarks[46]. This trend is demonstrated by the proliferation of “trademarked” patterns, buckles, buttons, and other product accessories and designs used by famous labels and market leaders. Protecting these marks may lead to less investment not only in product and design innovation for new products but also in product quality for existing products[47]. This is because securing trademark protection for NTTMs and enforcing this protection against potential copiers allows businesses to capitalize on and extract value from the attractive power of these aesthetic features that are protected as trademarks[48].
Hong and Bradshaw (2019) highlight the trademark implications of 3D printing, focusing on the barriers preventing the registration of 3D marks. The protection of trademarks is mostly provided by trademark registration, but not all signs are protected in trademark law[49]. Signs that are distinctive or possess goodwill or reputation about the goods or services in question are protected. However, the registration of shape marks is controversial[50]. It should be noted that regardless of how a physical product bearing a sign is made, the trademark law is primarily concerned with how a sign becomes distinctive or respectable and how it is utilized in the course of trade[51]. As a result, it is doubtful that using 3D printing as a production method will impact how trademark rights are handled and construed. For instance, the creation and printing of a three-dimensional product using a 3D printer that bears a trademark does not affect the development of distinctiveness, goodwill, or reputation[52]. The wider changes caused by the advent of 3D printing, such as online activities about Computer-Aided Design (CAD) files, are noteworthy. In particular, about the current issue of CAD files being uploaded onto online platforms for sale or sharing, the question arises as to whether and to what extent the ambit of trademark law could expand to encompass the use of a sign in respect of digital goods in terms of infringement.[53]. Also, it has to be noted the significance of CAD files in the context of trademark law and the trademark issues that could arise in relation to the construction of a CAD file and the sale or sharing of a CAD file on the internet. It also discusses the challenges of protecting 3D marks, such as the difficulty in proving distinctiveness and the likelihood of confusion with other marks.
For example, is a case between SABEL BV and Puma AG regarding registering a trademark for a 3D shape mark in the EU. The case referred to Article 4(1)(b) of the First Council Directive 89/104/EEC, which aimed to harmonize the laws of the Member States relating to trademarks. The court considered whether the shape mark applied for by SABEL BV was capable of distinguishing its goods and services from those of other companies.[54]. The court held that a 3D shape mark could be registered if it could distinguish the goods or services of one company from those of another and if it did not fall under the category of marks excluded from registration. The court further held that the assessment of whether a 3D shape mark was capable of distinguishing goods and services depended on the perception of the relevant public[55].
Conclusion
In summary, the registration of shape marks is controversial in the EU and the UK. The high level of distinctiveness required for shape marks and the functionality requirement have been significant barriers to the registration of shape marks. The numerous legal cases and decisions regarding the registration of shape marks in the EU and the UK have illustrated this. Despite the challenges, there have been some successful registrations of shape marks, particularly for products with unique shapes that do not have any functional purpose. However, the legal uncertainty surrounding shape marks and the difficulties in meeting the distinctiveness and functionality requirements mean that shape marks are still a relatively uncommon form of trademark protection. The registration of shape marks requires careful consideration of the distinctiveness and functionality of the shape, as well as the potential for consumer confusion. Businesses need to seek expert legal advice before attempting to register a shape mark to ensure that they meet the requirements and avoid any potential legal issues. The registration of shape marks remains controversial due to several barriers. One barrier is that 3D shape marks are difficult to represent graphically, making registering them challenging. Another barrier is that the perception of the relevant public is subjective and may vary, making it difficult to determine whether a 3D shape mark can distinguish goods and services.
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[1] Suthersanen, Uma. “Excluding designs (and shape marks): where is the EU Court of Justice going?.” IIC-International Review of Intellectual Property and Competition Law 50, no. 2 (2019): 157-160.
[2] Pila, Justine. “Trade marks and related rights.” In Seville’s EU Intellectual Property Law and Policy, pp. 348-527. Edward Elgar Publishing, 2022.
[3] Ibid 158
[4] Ibid 348
[5] Ibid.
[6] Ibid 159
[7] Wee Loon, N. L. “Absolute bans on the registration of product shape marks: a breach of international law.” The protection of non-traditional trademarks: critical perspectives. OUP, Oxford (2018).
[8] McMahon, P. “De facto barriers prohibited,” (2022)
[9] Hoffrichter, Pinja. “Bad faith and evergreening in EU trademark law.” (2022).
[10] Ibid
[11] Ibid
[12] Gangjee, Dev. “Trademarks and innovation?.” In Research Handbook on trademark law reform, pp. 192-224. Edward Elgar Publishing, 2021.
[13] Ibid
[14] Ibid
[15] Schovsbo, J., & Riis, T. Public Policy Limitations of Trade Mark Subject Matter–An EU Perspective, (2018). Available at SSRN 3188013.
[16] Ibid
[17] Ibid.
[18] Ibid
[19] Ibid
[20] Saavedra Layera, Luis Alberto. “The challenge of securing shapes as EU trademarks: Does the CJEU set a reasonable criterion for the register and validity of shape marks?.” (2020).
[21] NIBUSINESS INFO.CO.UK. EU trademark protection and comparable UK trademarks
[22] Ibid
[23] Härmä, Onerva Aline. “Protection Of Well-Known Trademarks: A Comparative Analysis Of The United States And The European Union.” Bachelor Thesis, School of Business and Governance Department of Law, Tallinn University Of Technology (2020).
[24] Ibid
[25] World Trade Organisation. REPERTORY OF APPELLATE BODY REPORTS: Paris Convention (1967)
[26] Ibid
[27] Ibid
[28] Ibid
[29] Fhima, Ilanah. “Functionality, cumulation and lessons from trade mark law: the Advocate General’s Opinion in Brompton Bicycle.” Journal of Intellectual Property Law & Practice 15, no. 4 (2020): 301-307.
[30] Ibid 302
[31] Ibid 305
[32] Ibid 306
[33] Anemaet, Lotte. “The Fairy Tale of the Average Consumer: Why We Should Not Rely on the Real Consumer When Assessing the Likelihood of Confusion.” GRUR International 69, no. 10 (2020): 1008-1026.
[34] Huang, Vicki T. “An Empirical Analysis of the Fashion Design Case Law of Australia.” IIC-International Review of Intellectual Property and Competition Law 52, no. 3 (2021): 242-264.
[35] Ibid 1009
[36] Ruchkin, Vladyslav. “Non-Conventional Trademarks in the European Union and the United States of America. Comparative Analysis of the Approaches to the Registrability Question.” Ph.D. diss., Mykolo Romerio universitetas, 2020.
[37] Sīlis, Georgs. “Protecting 3D service marks in the EU: the trademark registration dilemma.” (2020).
[38] Ibid 1010
[39] Simon Fhima, Ilanah. “Psychology, Prototypicality and Basic Shapes: The ‘Shape Resulting from the Nature of the Goods’ Exclusion under EU Trade Mark Law.” Developments and Directions in Intellectual Property Law 20 (2022).
[40] Ibid
[41] Ibid
[42] Ibid
[43] Walsh, Karen, Andrea Wallace, Mathilde Pavis, Natalie Olszowy, James Griffin, and Naomi Hawkins. “Intellectual property rights and access in crisis.” IIC-International Review of Intellectual Property and Competition Law 52 (2021): 379-416.
[44] Calboli, Irene. “Hands off “my” colors, patterns, and shapes! How non-traditional trademarks promote standardization and may negatively impact creativity and innovation.” (2018): 287.
[45] Ibid 287
[46] Ibid 287
[47] Ibid
[48] Porangaba, Luis H. “Acquired distinctiveness in the European Union: when nontraditional marks meet a (fragmented) single market.” Trademark Rep. 109 (2019): 619.
[49] Hong, Dukki, and Simon Bradshaw. “Digital trademark infringement and 3D printing implications: what does the future hold?.” In 3D Printing and Beyond, pp. 99-114. Edward Elgar Publishing, 2019.
[50] Ibid 100
[51] Pila, Justine. “Trademarks and related rights.” In Seville’s EU Intellectual Property Law and Policy, pp. 348-527. Edward Elgar Publishing, 2022.
[52] Ibid.
[53] Ibid 110
[54] JUDGMENT OF 11. 11. 1997 — CASE C-251/95 – EN – EUR-Lex
[55] Ibid
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