Three-dimensional
trademarks can be filed for products with a distinctive shape or design that is
easily recognized by consumers, such as perfume bottles or headphones. The Coca
Cola glass bottle is the most famous example. 3D trademarks are, however, restricted
to shape and design and cannot cover the technical function of the object. The
criteria for registering one are very specific and therefore difficult to
obtain, but they do provide a high level of protection. This prevents one
company’s monopoly over a product, thereby ensuring competition in the marketplace
and continued technological progress.
According the IPKat, although 3d trademark registrations do not
cover the technical functions of a product, certain signs conveying a higher
“degree of difficulty” require judges to reverse-engineer them. That means that
they must see if the product’s practical function can be inferred from the
trademark’s graphical representation and from the company’s commercial
behaviour. If so, the 3-d trademark cannot be granted since its legal
protection would ensure that company’s monopoly over all such products.
Reverse engineering by judges has already occurred in two notable cases.
The
first case involves Yoshida knives. In 1999, the Japanese metal company
registered two trademarks for two-dimensional signs connected to knife
products. Three competitor companies demanded it be invalidated because the
marks depicted a three-dimensional product which performed a specific technical
function. The dots in fact represent concave indentations designed to keep the
knife handle from slipping. After
several court cases and appeals, the EU General Court ruled that the essential
characteristics of the trademark (a trapeze shape and collection of black dots)
perform a technical function and therefore, the design could not be a protected
trademark. The ruling was final in spite of Yoshida’s claims that the mark was
just a two-dimensional geometrical design of black dots.
In
this case, the court transformed a two-dimensional sign into a technical object,
thereby setting the precedent for reverse-engineering marks. It was able to do
so partly by taking into account the company’s commercial behaviour: Yoshida owned
several patents for kitchen equipment, including knives.
![]() |
The second case concerns Lego’s three dimensional mini-figures. An
article from City University reports that Best-Lock, a company wanting to sell
a similar product, challenged Lego’s 3d trademark. The EU court, in order to
render a judgment, engaged in reverse-engineering. It inferred from the
graphical representation of the mini-figures the representation of distinctive
(human) traits as a purely aesthetic function. They were not able to infer from
the shape and design of the Lego figures that they were made to connect to
other building blocks. Therefore they were deemed to not serve a technical
function and the trademark was allowed.
Recently, in the case of Seven Towns Ltd.’s Rubik’s cube, a first
challenge in 2014 by Simba-Toys was overruled by the European General Court
which determined that the presence of an internal rotating mechanism could not
be inferred from the graphic representation of bold black lines or a grid-like
structure on the surface of the cube. This decision, however, was turned around
by the CJEU just last week. It claimed that "the essential characteristics
of a shape must be assessed in the light of the technical function of the
actual goods concerned", much like in the case of Yoshida knives. Seven
Towns have therefore lost their trademark and are not happy about it. Their
lawyer, Nick Kounoupias, was quoted in saying he fears for the future of 3-d
trademarks: “this is a massive assault on the 3D trademark regime […] it is
going to lead to the decimation of registered trademark protection for 3D shape
marks for many businesses across the EU – and that, in turn, will have a
devastating impact on people's jobs, on non-payment of VAT and non-payment of
income tax in response to mass-pirated products coming from places like China.”
![]() |
![]() |
Image source: https://www.lego.com/en-us/minifigures/products |
![]() |
Image source: IPKat |
In cases involving such complex designs, however, other options
for legal protection exist, like registering it as an industrial design. You
should always do your research before launching your brand to make sure that
you protect your company’s reputation, brand value and profits in today’s
global marketplace.
For advice and more
information on searching, acquiring, registering and enforcing Trademarks
please visit our website, http://www.lipex.com.
Our unique database of trademarks for sale or license could save you time and help protect your brand.
Our unique database of trademarks for sale or license could save you time and help protect your brand.
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