According to legal definition, a trademark is any sign which is capable of distinguishing the goods of one undertaking from the goods of other undertakings, and also capable of being represented in the Trademark Register in a way that allows to determine clearly and precisely the subject of granted protection.
Apart from the most common kinds of trademarks, such as word, word-figurative or figurative, yet another kind is a three-dimensional trademark, which is nothing else but the shape of a product or the shape of its packaging.
The trademark no. EUTM- 000784389 is an example of a three-dimensional mark being the shape of a product.
Here are a few other examples of three-dimensional trademarks:
EUTM-010103836 EUTM- 006748727
A three-dimensional trademark can also be the packaging of a product, such as a bottle for beverages, in particular a bottle for alcoholic beverages, or cans, perfume flasks, paper packagings especially of cosmetics or tea in teabags, and also detergent containers, cream jars, or utensils for everyday use such as glasses.
Below there are examples of product packagings registered as three-dimensional trademarks:
EUTM- 005138961 R.104167 R.104167
R.297877 R.208090 EUTM-017867471
As one can see from the above examples, three-dimensional marks can be a combination of the shape of a product or the packaging with other elements, such as words, graphic elements, a color, or a label ? as these elements strengthen the distinctiveness of the mark, which is a requirement that needs to be fulfilled in order to obtain protection.
Sometimes it may happen in the course of examination of an application for a three-dimensional mark without additional elements that the very shape of a product or its packaging alone is not enough for the Patent Office to consider the mark sufficiently distinctive. Therefore, it is recommendable to apply for registration of three-dimensional marks in combination with other elements, for example words.
A three-dimensional trademark, in order to be filed as a national application ? directly to the Polish Patent Office, or respectively as a European Union Trademark (EUTM) – directly to the European Union Intellectual Property Office (EUIPO), must be presented in the application in the form of a graphic reproduction of the shape which constitutes the subject of the mark. Acceptable are computer-generated images or photographic reproductions (photographs).
Graphic or photographic reproductions may present different views of the shape of the product or the packaging being the subject of an application, but it is also possible to file a representation of a single view of a three-dimensional mark, provided that the three-dimensional effect of the mark is clearly visible.
Three-dimensional marks are third in the ranking of the kinds of trademarks which are applied most frequently. What is interesting, the parties applying for registration of this kind of trademarks are predominantly the companies from the cosmetic and food sector. In 2018, the number of EUTM applications for three-dimensional trademarks was 455, out of which 301 obtained registration.
Agnieszka Skrzypczak is a patent attorney specializing in trademarks and industrial designs. In 2002, she obtained the rights of a Polish Patent Attorney, and since 2004, she is also a European Patent Attorney. She is a member of INTA (International Trade Marks Association) and PIRP (Polish Chamber of Patent Attorneys). Contact with the author