Shape trade mark
A shape trade mark is where the actual shape of a product is distinctive or unusual enough to function as a trade mark. A particular shape can give the product a unique appearance.
A shape can be registered as a trade mark if it distinguishes the product from others. It gives the owner protection for the visual appearance of the product but not how the product works.
A shape trade mark can not be used to prohibit others using a shape that is in common use and required by them in the normal course of their trade.
Shape trade marks are three-dimensional, for example toothbrushes, biscuits, chocolates, pens and bottles.
A well-known shape trade mark is the original Coca-Cola glass bottle. It is a good example of the actual physical shape of an object functioning as a trade mark.
A normal wine bottle could not be registered as a trade mark for alcoholic beverages because it is a shape that is commonly used in the wine industry and one that other traders have a legitimate need to use in the course of trade.
A shape trade mark can also apply to product packaging, such as cardboard boxes and cartons that are unique and distinctive. For example, a standard shoe box would not qualify as a shape trade mark to sell shoes. But the distinctive triangle-shaped Toblerone chocolate box does.
Shapes with significant functional features are difficult to register. The triangular shape of the Toblerone chocolate is not a functional feature, it is merely decorative, so it qualifies as a shape trade mark.
If you are applying for a shape trade mark, you may need to show that the shape identifies your particular goods or service. You may also need to demonstrate that the shape is not a copy of a shape already existing as an item in the marketplace.
For specific advice regarding your product you can contact an IP Professional.
Last Updated: 12/12/2012