What is a shape trademark?
A shape trademark is a three-dimensional shape used to distinguish the goods and services of one brand from other brands. The ability to distinguish the goods or services from those of other traders is the main purpose of any sort of trademark, as it aims to provide a unique sign that consumers will associate with a given brand, its characteristics, and quality. The shape of goods trademark helps protect the shape of such products whose visual appearance has attained a distinct uniqueness and popularity so much so that the public at large may recognize the product because of its shape. It also provides the owner with a clear commercial advantage in the manufacture and sale of those products and/or packaging.
The current legal position relating to shape trademarks is in the UK Trade Marks Act 1994, which allows for the registration of 3D product shapes that meet the criteria as other types of trademarks. The shape of the Coca-Cola bottle, the Toblerone chocolate, and the Chanel bottle, to name a few, have obtained protection for their product’s shape or packaging as a result of their unique and distinctive characteristics.
Coca-Cola originally developed its famous fluted bottle design in the U.S. in 1915 to distinguish its bottle from competitors making similar bottles. The continuous use of the unique distinction and recognition led to this bottle being registered as a trademark in the US in 1960. Thanks to Coca-Cola’s marketing efforts this shape has now become an essential part of Coca-Cola’s brand and is associated with the company on an international level. Later, Coca-Cola applied for its plastic and metallic bottle design to be trademarked across the European Union, arguing that the shape in question is a natural evolution of the iconic bottles its drinks are known by, which was met with more opposition due to lack of significant distinctive features.
The Swiss chocolate, whose shape is based on the triangular shape of the Matterhorn peak, is protected by a 3D trademark in the area of confectionery and is known for its shape being a long bar with a series of joined triangles (peaks). The packaging of Toblerone clearly outlines the shape of the chocolate inside, which allows consumers to automatically recognize the exterior branding as belonging to Toblerone, but more importantly, the shape of the packaging results in it being immediately recognizable as pertaining to that particular brand.
Some prominent brands, despite seemingly having the necessary recognition amongst millions of consumers, failed in their bid to claim 3D trade mark protection.
Jaguar Land Rover
In 2016, Jaguar Land Rover applied to register some three-dimensional shape trademarks in the UK in relation to a range of goods and services, such as vehicles and spare parts, badges, toy and model vehicles, and maintenance, repair and customisation services. Following the application, however, objections were raised as the trademarks were considered to be descriptive of a sports utility vehicle and toy models of vehicles and lacked any inherent distinctive character.
Rubik’s Brand (Rubik’s Cube)
UK-based Seven Towns, which manages the toy's intellectual property rights and is connected to Rubik's Brand Ltd, registered the shape of the toy as a three-dimensional EU trademark with the European Union Intellectual Property Office (EUIPO) in 1999. The Rubik’s cube is a globally recognised product, distinctive in many ways which one would expect to qualify it for a trademark. However, in 2017 the General Court found that as its design and shape were necessary for it to function as a 3D puzzle it could not be protected as a trademark.
These cases case highlight the persisting difficulties for brand owners in trying to secure registered protection for non-conventional marks, particularly marks that comprise the shape of the products themselves. Still, this shouldn’t discourage any new business owners from experimenting with unique signs that could help their products and services stand out from others. If the shape a brand seeks to register is distinct enough it can be protected under trademark laws and serve as an unparalleled asset to attract more customers and build a reputation.