"A trademark is the banner of a business war and the pioneer in market expansion." This famous saying in the business world has now been given a richer and more three-dimensional meaning. Imagine if the Rolls-Royce "Spirit of Ecstasy" were no longer just a flat emblem, but an elegant statue standing on the car's hood; or if Coca-Cola's classic contour bottle not only appeared in advertisements but its unique bottle design became a brand symbol that consumers can directly touch. As trademarks "stand up" from two-dimensional surfaces into three-dimensional space, a silent revolution concerning brand expression, legal protection, and business strategy is quietly taking place.
Concept Definition: From Flat Symbols to Spatial Entities
Traditional trademarks, also known as flat trademarks, are the "classical language" of the brand world. They construct a visual identity system on a two-dimensional plane through elements such as text, graphics, letters, numbers, and color combinations. Nike's "Swoosh" checkmark, McDonald's golden arches, and Apple's bitten apple—these simple graphics have become visual "shortcuts" for global consumers, instantly evoking all associations with the brand. The core of a flat trademark lies in its "symbolism," which is an abstract distillation and encoding of the brand's concept.
However, when the unique shape of a product or its packaging can serve as a means of identifying its source, a new type of trademark—three-dimensional trademarks—emerges. According to Article 8 of China's Trademark Law, a three-dimensional trademark is composed of three-dimensional signs, including the shape of the product itself or the shape of its packaging. It is no longer merely a "label" affixed to a product, but rather the physical form of the product or packaging itself. The triangular prism shape of Swiss Toblerone chocolate, the classic streamlined design of the Ferrari 250 GTO, and even the specific design of the Beijing Olympic Torch "Cloud of Promise" can all be registered as three-dimensional trademarks. From two-dimensional to three-dimensional, trademarks have completed a leap from "appearance" to "essence," with brand recognition expanding from visual perception to spatial form and tactile experience.
Registrability Threshold: The Dual Test of Functionality and Distinctiveness
In terms of registration thresholds, three-dimensional (3D) trademarks face a much stricter legal examination compared to two-dimensional (2D) trademarks. The core of registering a 2D trademark lies in the examination of "distinctiveness," meaning whether the mark inherently possesses the attribute to distinguish the source of goods or services or has acquired a "secondary meaning" through use. However, 3D trademarks must also overcome a critical hurdle: the principle of non-functionality.
According to Article 12 of the Trademark Law, shapes that arise solely from the nature of the product, shapes necessary to achieve a technical effect, or shapes that give substantial value to the product cannot be registered as trademarks. This embodies the principle of functionality, which is founded on the rationale of preventing trademark rights from improperly encroaching on the domain of patent law, thereby safeguarding public interest and free competition.
The inherent shapes of products, such as the round shape of a
tire or the rectangular sheet-like form of a book, represent the
universal or basic forms of these types of products, essential to
the industry. Allowing monopolies on these shapes would hinder
normal production. Shapes necessary to achieve technical effects,
such as a specific serrated blade design intended to enhance
cutting efficiency, should seek patent protection rather than
trademark protection. Shapes that give a product substantial value,
primarily referring to aesthetic functions, such as a unique vase
design where its appeal lies mainly in its beauty rather than
indicating source, should not be exclusively owned under trademark
rights.
Therefore, for a three-dimensional mark to be registered, it must
demonstrate both "non-functionality" and
"distinctiveness." For instance, the Rolls-Royce
"Pantheon Grille" design, although an automotive part,
features complex craftsmanship and decorative qualities that far
exceed cooling or other utilitarian functions. Through long-term
use and promotion, it has established a unique association with the
brand, thus gaining approval for registration in multiple
countries. In contrast, the generic cylindrical shape of an
ordinary beverage bottle would be difficult to qualify.
Strategy Selection: When to Choose Which Type of
Trademark?
In brand protection practices, deciding whether to choose a
two-dimensional trademark, a three-dimensional trademark, or a
combination of both is a strategic art that requires comprehensive
consideration.
Two-dimensional trademarks are more commonly and fundamentally applicable. Cost and efficiency are their primary advantages, with a relatively standardized application process and lower examination risks, making them the first choice for establishing initial brand recognition in most cases. The ease of dissemination and replication should not be overlooked; whether printed on packaging, displayed on screens, or used on social media, two-dimensional logos offer unparalleled flexibility and adaptability. Moreover, their abstractness and inclusiveness allow a well-designed two-dimensional logo to transcend product iterations and embody an enduring brand philosophy. For example, Mercedes-Benz's three-pointed star emblem is suitable for the entire range of products from cars to trucks.
A three-dimensional trademark serves as a sharper brand moat
under specific conditions. When the shape of a product or its
packaging itself becomes the core asset of the brand and the focal
point of consumer recognition, registering a three-dimensional
trademark becomes crucial. For instance, the green teardrop-shaped
glass bottle of France's "Perrier" mineral water and
the octagonal body of Italy's "Bialetti" moka pot are
integral to the product and are core parts of the brand's
heritage. In highly competitive markets with high product
homogenization, a unique and registerable three-dimensional shape
can build a strong differentiation barrier, especially in fields
like home goods, cosmetics packaging, and high-end liquor
packaging. A three-dimensional trademark also provides
comprehensive protection, preventing competitors from causing
market confusion by imitating the overall shape of a product, which
is something flat trademarks cannot fully guard against.
Combining registration and overall strategy has become a common
tactic for leading brands. Many brands employ a "combination
punch": they register core flat graphic trademarks and seek
protection for iconic three-dimensional product forms, sometimes
using both in combination. For example, Coca-Cola owns its script
text trademark, the red ribbon graphic trademark, and the classic
contour bottle three-dimensional trademark. When considering
geographical layout, it's also important to account for
differences in judicial practice across different jurisdictions,
such as the varying levels of acceptance and examination standards
for three-dimensional trademarks in the EU and the US, requiring
proactive and targeted planning.
The Unique Value and Future Challenges of Three-Dimensional Trademarks
Three-dimensional trademarks that have been successfully registered often have remarkable protective strength. They protect the "three-dimensional shape" itself, rather than the specific technology or material used to achieve that shape. This means that regardless of the materials or processes competitors use to imitate, as long as the overall visual impression is similar and likely to cause confusion among the relevant public, it may constitute infringement. This type of protection carries a certain "absoluteness," with its effect not limited to identical or similar goods, and under specific conditions, it can extend to related fields.
However, enforcing rights for three-dimensional trademarks is usually more complex in terms of evidence collection. It is necessary to prove that the shape of the allegedly infringing product is identical or similar to the registered three-dimensional trademark, and that the use is trademark use (i.e., for source identification). In the face of a "functionality" defense, the rights holder must be well-prepared with evidence to demonstrate that the shape primarily serves an identifying function rather than a utilitarian or aesthetic function.
Looking ahead, the widespread adoption of 3D printing technology and the development of the metaverse and virtual economy present new challenges for the protection of three-dimensional trademarks. In the virtual world, does the three-dimensional shape of goods constitute trademark use? What are the boundaries regarding the unauthorized printing of product designs protected by three-dimensional trademarks? These issues necessitate the continuous evolution of trademark law and practice. Additionally, the emergence of non-traditional trademarks such as motion trademarks, holographic trademarks, and scent trademarks is continually expanding the dimensions of "trademarks," posing new challenges for examination standards and infringement determination.
The evolution of trademark forms from two-dimensional to three-dimensional reflects the profound transformation of commercial civilization from merely identifying products to shaping experiences, and from conveying information to building brand identity. In today's increasingly competitive branding environment, understanding and effectively utilizing three-dimensional trademarks is not only a requirement for legal compliance but also a strategic necessity for creating an inimitable brand core and constructing deep consumer memories in spatial dimensions. When trademarks truly "stand up" and integrate into the physical essence of products and the perceptual world of consumers, the brand gains a kind of vitality that transcends the visual—a more robust and vibrant life force.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
