Can You Trademark a 3-D Shape?

by | Aug 20, 2019 | Trademark

Trademark law is a highly complicated topic. However, for business owners, it’s also one of the essential parts of protecting your business branding efforts and intellectual property. Trademarking your name or logo ensures that consumers aren’t confused by deceivingly similar designs. Thus allowing you to safeguard your brand and image. However, one issue continues to come up in trademark law: can a 3-D shape be trademarked?

The Technicality of Trademarking 3-D Shapes

The question of trademarking 3-D shapes is fairly new, making it difficult to implement standards across the board. For example, consider the case of the Rubik’s Cube in Europe. While the shape was once protected, the European Court of Justice later found that the cube’s distinctive shape was a necessary part of its function, so they canceled the trademark.

A 3-D shape, also known as a product configuration, can have its designs and features trademarked. However, the designs and features must not serve any functional purpose. As an example, the Coca-Cola Company has a trademark on its bottle design. The bottle is distinctly recognizable as belonging to Coca-Cola, but it doesn’t serve a practical function. That is to say, the features that define the Coca-Cola bottle do not make it more functional as a bottle. Similarly, Christian Louboutin has a trademark on his shoes’ red outsoles. This feature is distinctive to Louboutin but is not a function of the shoe.

Trademarking Unique Shapes and Colors

For the features and traits of a 3-D shape to be eligible for trademark protection, they must meet specific standards. First, the traits protected under a trademark must identify the origin of the brand’s product or service. Second, the traits must also be inherently distinctive.

Defining “Distinctive Character”

Determining whether a design has a distinctive character or is inherently distinctive is perhaps one of the most difficult parts of trademark law. It’s helpful to look at whether the design would help a customer/consumer understand it as a product design from a particular source. A design is also distinctive if consumers immediately recognize it as belonging to a specific brand. The given examples of Coca-Cola and Louboutin work well in defining distinctiveness. Consumers recognize the Coca-Cola bottle shape as belonging to Coca-Cola with a single glance, and the red outsoles of Louboutin shoes are inextricably connected with the brand.

Do you have questions about your trademark application and how you can protect your brand’s intellectual property? We are ready to help. Contact EmergeCounsel at 888-EMERGE-0 (888-363-7430) to discuss your needs.


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