The registration of three dimensional trade marks for shapes is not uncommon in Europe. However, most such marks are for specially shaped packaging such as perfume bottles. Although such marks are not without their own difficulties, shape marks in respect of the article itself or parts of it present much more difficulty, both in terms or registration and in resisting challenges to their validity. There are two reasons for this. The first is the difficulty in practice of showing that such marks are sufficiently distinctive, and the second is a set of provisions in European Union trademark law that are specific to shape marks. Shape marks have always been a fertile source of case law but there has been even more activity than usual in 2014, with the Court of Justice considering for the first time certain aspects of those provisions that are specific to shape marks, and with the General Court showing that despite the considerable hurdles that such marks can face they can sometimes proceed to grant and withstand third party challenge.
Keywords: 3D trademarks, shape marks, European Union, distinctive character
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Originally published in the Journal of Intellectual Property Rights, November 19, 2014
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