Too Common, Too Splendid, or ‘Just Right’? Trade Mark Protection for Product Shapes in the Light of CJEU Case Law

Abstract

Due to their capacity to confer ‘eternal’ protection on product shapes, three-dimensional trade marks seem to defy the basic tenets of intellectual property. Registration of such marks is therefore regularly subject to certain restrictions set forth in the law or developed by the courts. European trade mark law is no exception in that regard. While the CJEU insists that shape marks are to be assessed under the same principles as other forms of marks, obtaining protection in practice is quite difficult, which is only partially explained by the different perception of consumers. Furthermore, shapes are the only form of signs that is subject to an absolute and permanent exclusion from protection in order to safeguard competition interests. While the latter provision has been dormant in practice for most of the time, recent jurisprudence has given it more teeth; however, it has also rendered the contents of the provision and its relation to the other obstacles for protection more obscure, making it extremely difficult in practice to distinguish between the different categories. The article gives an overview on the legal situation and recommends a more transparent, balanced approach.

Keywords: Overlaps, threedimensional marks, distinctiveness of shapes, shapes resulting from the nature of goods, shapes conferring value to goods, need to keep free, Tripp Trapp chair