TUESDAY, 9 JUNE 2009
Shapes that made it, and those that didn't
This post is a fairly unscientific look at some of the shapes that were registered as three dimensional trademarks in Switzerland, and some applications that were refused (by court on appeal from the initial objection by the Swiss IPO). The marks that were registered are on the left, the refused applications on the right (the layout is a bit off with so many images).
The golden reindeer on the left was registered for chocolate goods after initial refusal by the IPO. The Federal Administrative Court noted that not only did the mark show the verbal element "Lindt", the shape was also unusual in its combination. Also registered for chocolate - a bit surprising - was the bitten-off bar of chocolate on the left.The Santa Claus on the right, however, was refused for chocolate as being non-distinctive.
The application for the banded bottle on the right was refused, despite the verbal element, because the verbal element was considered too small to change the overall impression of the mark. Also refused was the bottle with the raised dots, also on the right (all bottles claimed protection for beverages). The twisted bottle on the left, on the other hand, was considered distinctive.
The perfume bottle in the shape of a tear on the left was also registered, as well as the container in the shape of a diamond for detergents and other goods in class 3, below left.
The bottle of air freshener in pastel-shades on the right, however, was refused protection on appeal. The application for the cigarette package with rounded edges, right, went all the way up to the Supreme Court, where it was denied protection.
This brief overview shows that the practice regarding 3D trademarks is still unsettled, and not all decisions are self-evident. Generally, to be protectable, a shape without any verbal or pictorial element has to be "so unusual (original) that the consumer will remember it for a longer period ('längerfristig')". In fields where a great variety of shapes is used - such as perfume bottles - it is assumed that the consumers consider the shapes decorative and not an indicator for the source of the goods. The standards have become stricter in recent years; some of the earlier registrations, such as the twisted bottle, may not make it in today's climate anymore.
Posted by: Mark Schweizer @ 14.11
Tags: 3d trade marks, Switzerland,