Can 3d marks be registered?

The extent of protection of a 3D brand depends on the products and services for which it is protected. Therefore, it is essential to attach a list to the registration request. In addition, it can no longer be extended after registration and therefore must be completed. All products and services are divided into 45 classes according to the “International Classification of Goods and Services for Trademark Registration”, called the “Nice Classification”.

In addition, a trademark color image in 3D form (also known as a three-dimensional color mark) is a combination of a 3D mark and a color mark. It is important to note that the owner of a trademark must demonstrate that the color of the brand has achieved considerable distinction, and the color suggests the source of the products to which it applies. Three-dimensional (3D) brands have been prominent in the news in recent years due to coverage provided to some of the world's largest companies, which have achieved great successes and failures in relation to registration in equal measure. If you have any questions about design trademark protection strategies, the Intellectual Property group at Dentons Canada will be happy to help.

The Swiss Supreme Court finally agreed with Ethical Coffee Company that the trademark for the 3D form of the Nespresso coffee capsule was invalid because the capsule shape was “technically necessary for use in a Nespresso machine” (which also means that if the 3D shape of the in fact, the coffee capsule had acquired a distinctive character was irrelevant). The Trademark Office requires the trademark owner to provide evidence that he has acquired a distinctive character in the brand. A design request is easier than a 3D mark request, since no source function is required here, for example. For example, in the case of Nestlé v.

Cadbury, the legal challenge to the 3D Kit Kat brand lasted seven years. Despite the obvious difficulties associated with it, the length of time, the costly legal battles and, ultimately, the high probability of failure, Mr. Jenkins added that 3D trademarks are unlikely to become obsolete in the long term thanks to the potential benefits associated with them. The availability of trademark protection on top of or in lieu of design protection can artificially undermine and extend the temporary nature of design rights.

This current position for this criterion is being considered in the Louboutin case, which concerns an invalidation action brought against a Benelux trademark registration for the signing of the red sole of Christian Louboutin shoes. Since the success of achieving a 3D trademark registration ultimately lies in the quality and quantity of testing, applicants must balance the disclosure of sufficient financial and commercial information to ensure registration without giving competitors access to confidential company information. In the Hauke v Stokke case (case of the Tripp Trapp presidency), the Court of Justice explicitly stated that this ground for refusal is not limited to marks that have a purely artistic or decorative value. The third criterion relates to brands that consist of a form that confers substantial value to products.

Gareth Jenkins and Don Pennant, of Leading Intellectual Property Firm Wynne Jones IP, Discuss Why an Investment in a 3D Brand Can Deliver Unparalleled Business Benefits and Industry Success. The Barcelona court of first instance held that the branded device of a dinosaur in a cookie must remain in the public domain, ruling against the plaintiff in a trademark and unfair competition lawsuit (judgment available here and posted here). This case highlights the court's attitude to prevent trademarks from being used to indefinitely extend limited-time protection of other intellectual property rights. The brand's distinctive bottle, with its recognizable outline, was considered individual enough to receive trademark 3D protection.


Jürgen Bosmans
Jürgen Bosmans

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