Many are surprised to learn that three dimensional shapes can be registered as trade marks in the UK then subsequently in the EU
Trade marks that are submitted for consideration of application can come in two forms. Traditional marks are generally in the form of words, lines and 2D shapes. Non-traditional marks can come in many forms including colours, shapes and smells.
Many are surprised to learn that three dimensional shapes can be registered as trade marks in the UK then subsequently in the EU. There is a number of well-known products from brands are protected by trade mark registration. The world famous Coca-Cola bottle shape that is instantly recognisable is protected from any copycats that try to recreate the shape for their own products. In addition, Kit-Kat has also recently applied for trade mark registration for their four finger chocolate bar which succeeded.
The key to the registration of a three dimensional mark is distinctiveness. If the mark is unique and does not relate directly to the nature of the goods or industry that they are in, the mark registration should succeed. However it is a general widely used shape that can relate to a number of different types of products, the rate of success will be low. When submitting an application for a 3D shape, the courts have given some guidance in what should be included in an application to ensure success. In Mars UK Ltd v Societe des Produits Nestle SA  EWCA Civ 1008, an application was made to register the shape of a ‘polo mint’. The application consisted of a black and white image of the mint but without ‘polo’ embossed on it. The court refused the application stating that a colour and size should be indicated to establish distinctiveness. In addition, in Swizzels Matlow Ltd’s Three Dimensional Trade Mark Application  E.T.M.R. 58,  it was expressed that a sufficient description needs to be included in an application if the mark is not obvious.
If you have any queries or need assistance with your trade mark application, contact trademarkroom!