What is a Shape Trademark?

The common understanding of the term Trademark is "A product name such as Coca-Cola or iPhone that raises a stable association with its quality."

Then comes the 'figurative mark' which is ideally a logo. We have all seen the "Half eaten Apple" or the “Window frames” symbol.

However, some rights holders decide to take additional precautions to safeguard their brand image and want to protect a shape of their product. This is also a type of trade mark.

You will find some tips according to shape trade mark below.

So what is shape trade mark?

A shape trade mark is a three-dimensional shape used to distinguish the goods or services of one trader from those of other traders. Such shape must have the ability to clearly identify the goods sold under such trademark from those of another manufacturer.

Apart from the basic test of being a trademark in terms of Section 2 of the Act, a shape mark has also to satisfy the following additional tests as laid down in Section 9:

A mark shall not be registered as a trade mark if it consists exclusively of:

1. The shape of goods which results from the nature of the goods themselves
2. The shape of goods which is necessary to obtain a technical result
3. The shape which gives substantial value to the goods. For the purposes of this section, the nature of goods or services in relation to which the trade mark is used or proposed to be used shall not be a ground for refusal of registration.

Sub Rules (3) and (4) of Rule 29 of the Trade Marks Rules, 2002 provide that where the mark is a three-dimensional mark, the reproduction of the mark must consist of a two-dimensional graphic or photographic reproduction as follows, namely:

• The reproduction furnished must consist of three different views of the trade mark.
• Where the Registrar considers that the reproduction of the mark furnished by the applicant does not sufficiently show the particulars of the three-dimensional mark, he may call upon the applicant to furnish up to five further different views of the mark and a description by words of the mark.
• If the Registrar is still not satisfied, he may call upon the applicant to furnish a specimen of the trade mark.
• Where the application for the registration of a trade mark consists of the shape of goods or its packaging, the reproduction furnished must consist of at least five different views of the trade mark and a description by word of the mark. If the registrar considers that these views do not sufficiently show the particulars of the shape of goods or its packaging, he may call upon the applicant to furnish a specimen of the goods or packaging as the case may be.

It is understood that “upon grounds of public policy, a trader ought not to be allowed to obtain by registration under the Trade Marks Act, a monopoly in what other traders may legitimately desire to use”.

This means that shapes or ordinary articles and goods which may legitimately be needed by traders or manufacturers are bound to be kept free and are not likely to be allowed registration.