“Shape of goods” has always been a fascinating subject matter for both IP protection and enforcement. The right holders are often faced with the dilemma to select the most appropriate IP legislation when it comes to protection of a particular shape. It is a general understanding that if the shape of a particular product is new and original and not disclosed to the public, such shape should be protected under the Designs law by registration. However, in cases, where the right holders have failed to register a particular shape under the Designs law, it can still be protected under the Trademarks law or common law tort of passing-off, provided it has become distinctive due to long and continuous use. In order to claim passing-off successfully, the right holder must establish that the particular shape has become distinctive of its goods or services, is associated exclusively with the right holder, and that use of a similar shape would create confusion among the public.
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