Shape Trademark in India
Shape Trademark in India
A distinctive shape of goods or its packaging or any three dimensional object capable of being represented graphically, can be a trademarked in India. A famous case involving shape trademark is the fight between Nestle and Cadbury. Nestle had blocked Cadbury’s attempt to trademark the purple color used in its packaging while Cadbury blocked Nestle’s attempt to trademark the four-fingered chocolate bar shape trademark. In this article, we look at shape trademark in India.
Requirement for Shape Trademark Registration
A trademark registration can be obtained for any distinctive shape of goods or its packaging or any th
ree dimensional object capable of being represented graphically. However trademark registration cannot be obtained for shapes that consist exclusively of:
- Shape of goods which results from the nature of goods themselves;
- Shape of goods which is necessary to obtain a technical result;
- Shape of goods, which gives substantial value to the goods.
Shape Resulting from the Nature of Goods
Any shape that is a result from the nature of goods themselves cannot be trademarked. The basis of this clause is to keep free of exclusivity any basic shapes of goods – for use by the public.
Shape Necessary to Obtain Technical Result
Any shape of good that is necessary to obtain a technical result cannot be trademarked. Hence, any shape which consist exclusively of the shape of a product that are attributable to the technical result cannot be trademarked.
Example: Lego was the owner of a trademark for three-dimensional shape of a red lego brick. Mega Brands applied to have Lego’s trademark declared invalid on the basis that the shape of the brick was necessary to obtain a technical result. Mega Brands contended that it was necessary to include two rows of studs on the upper surface of the brick in order to fit with other lego bricks. The European Courts agreed with Mega Brands and declared Lego’s trademark invalid.
Shape Giving Substantial Value to the Goods
The basis behind not providing trademark protection to shapes that give substantial value to the goods is to excludes “aesthetic shapes” from trademark registration. Thus, any shape that appeals to the eye compared to the common shape of a product cannot be trademarked. As a test for determining substantial value to the goods, what compels customers to select the particular shape over competing shapes, leaving aside any value attributable to better materials used or to any technical or functional feature must be determined.
To know more about shape trademark, consult a Trademark Attorney through IndiaFilings.com