A shape mark is a trademark that safeguards the shape of the product. It might be the shape of a product, a good, brand, logo, label, tag, etc that are designed by an individual. The shape marks have three-dimensional marks or shapes which are capable of distinguishing goods and services of one trader from another, which has been registered as trademarks since 786.
Shapes form part of the visual characteristics that help to distinguish a product. For the shape of a product to be registered as a trademark, the shape should be distinctive and should not act as a functional element of the product. For instance, the Coca-Cola bottle acquired a trademark for its shape, to protect its distinctiveness and identity.
A shape mark is also known as shape trademarks. Such a shape must have the capability to find goods sold under the trademark. This is a very beneficial process for blind people because some marks can be printed in Braille (A system of reading and writing for blind persons, through touch). Such trademarks are high in demand.
According to trademark rules, 2002, a shape mark must have a three-dimensional mark, the mark must consist of graphical representation or photographic reproduction as follows:
Once the shape mark has been registered, the following points are beneficial for the registrar:
The requirements for filing shape marks as trademarks are outlined in the Trademark Rules, 2002. The requirements are:
According to the Indian Trademarks Act, a trademark may involve the shape or appearance of goods or their packaging, so long as it is possible to graphically represent the same. Such a shape distinguishes the goods sold under such a trademark from those of another manufacturer.
Additionally, the shape mark has to satisfy certain criteria to be eligible to use as a trademark. The following criteria are required for shape mark registration;
The shape mark should not result from the nature of the goods themselves. This criterion expects that shapes being registered as trademarks must be differentiated from the goods or services, for which they can be practised. The distinctive features of a shape are analyzed based on the presumed expectations of reasonably knowledgeable consumers.
The shape should be necessary to obtain a technical result. This criterion has been put in place to determine whether the shape that has been registered is not a result of some technical process used in manufacturing the goods for which the shape has been registered. Granting such a trademark would effectively mean denying other products manufacturers the right to produce goods of a similar shape. Hence, in such cases, where it is made that the components of a particular good being produced are based on functional considerations essential for arriving at a technical result. Hence, protection under the Trademarks Act cannot be given to such goods.
The shape should not be such that it gives ample value to the goods. This criterion has been put in place to safeguard other manufactures of similar goods, who may lose out on the value of their goods if the shape being registered is a crucial part of the product completion method and adds an element of value to complete goods in terms of design or outward appearance. This criterion is defined based on an analysis of the shape being enrolled and the shape of other comparable goods.
The graphical representation of the shape mark: The representation of the shape trademark must be easy to understand and should be able to identify the mark. It is needed to make a statement to the effect, in the application for the registration.
The shape must acquire a distinct character: The main issue faced while registering the shape mark is when the proprietor has to prove the inherent distinctiveness of the mark. But now, the trademark office does not expect the evidence for showing prior use of the shape trademark.
Three-dimensional trademarks are becoming popular in India, as they help in making products readily distinctive, more striking and impressive, and help in overcoming the business competition and to meet certain inevitable requirements of products.
Some of the examples of 3D shape marks are the contour of a Coca-Cola bottle, the shape of the Zippo Lighter, the 3D shape of the Super Cub Scooter of Honda, or the Toblerone packaging.
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