A three-dimensional or 3D trademark registration protecting the shape or three-dimensional appearance of a mark. You identify a product or service from a particular company by their trademark. In some cases the unique shape or product package can be registered as a 3D trademark.
There are still not that many applications for the registration of these trademarks. Mainly because besides the traditional requirements for registering a trademark, there are additional requirements. The two aspects why the 3D trademark is mostly rejected are distinctiveness and technical function.
In a recent case from the Swedish Patent and Market Court, the court dismissed Dalecarlia Chocolates AB’s (Dalecarlia) infringement claim of their EU and Swedish 3D marks in relation to chocolate, candy and confectionery (class 30). The 3D marks, depicted below, are formed as a Dala horse – a traditional, wooden horse statue originating from…
The Danish Parliament, Folketinget, passed a new Danish Trademark Act (TMA) on 20 November 2018. The TMA implements the harmonisation of the relevant EU directive (Directive (EU) 2015/2436 of 16 December 2015). The new TMA will implement a number of changes, including: It becomes optional whether or not to have earlier rights cited during the…
Sometimes cases are not really that interesting for their outcome, but rather for how the Courts get there. In this case, Wajos GmbH filed a 3D mark consisting of a glass container, shown below, designating various goods in classes 29, 30, 32 and 33. The EUIPO’s examination division and Board of Appeal (BOA) held that…
This case is about the genuine use of shape marks. M J Quinlan & Associates PTY Ltd. of Australia own a 1999 registration for the shape of a kangaroo. The mark is protected for potato snacks and potato crisps. The plaintiff owns or owned a patent and design rights to the kangaroo-shaped crisps which were…
On the 21 March 2018 the Danish Board of Appeal (“The Board”) delivered its decision regarding the trademark protection of the shape of the following potato snack (decision no. AN 2017 00006): The snack originates from the famous snack brand Kims which is owned by Orkla Confectionary & Snack Danmark A/S (“Orkla”). In the decision…
The Fourth Board of Appeal (BoA) of the EUIPO has once again been told off by the General Court (GC). In its decision of 6 June 2018 (case T-803/16), the GC decided that the BoA was not competent to rule upon the question of genuine use of its own motion in inter partes proceedings if…
In a recent judgement, the Swiss Federal Administrative Court once again confirmed its (too) strict position with regard to the registration of shape marks. The court ruled that a three-dimensional mark consisting of the graphical background of a popular chocolate bar’s packaging could not be registered since the design was not perceived as an indication…
Shape mark: form of a drinking bottle lacks distinctiveness in relation to perfumes A recent judgement of the Swiss Federal Administrative Court highlights the strict practice for the registration of shape marks. The court ruled that a 3D mark for perfumes cannot be entered in the trade mark register for perfumes in Class 3, since…
The Court of Appeal (‘CoA’) recently published its decision on the validity of two shape mark registrations for the shape of London black taxis. Unfortunately, it has not improved the position for those seeking protection for trade dress in the UK. Pure recognition of the sign is still not sufficient basis to lay claim to…
Nestlé was last month dealt another blow in its relentless bid to register the 3D shape of its famous four-fingered bar. The Court of Appeal (CoA) of England & Wales last month upheld the High Court’s earlier decision, rejecting the four bar Kit Kat. The background to the case can be found here, but the…
