The Approach of The Court of Justice of the European Union Towards the Protection of Three-Dimensional Marks

Abstract

Three-dimensional shapes are the most common type of non-traditional marks becoming widespread. Especially in the last two decades, trade mark applications regarding the protection of three-dimensional shapes have increased significantly. Assessment for the registration of three-dimensional shape marks is no different from other marks types, as the Court of Justice of the European Union suggests. However, in addition to standard trade mark protection requirements, three-dimensional shapes must fulfil additional criteria. The EU Trade Mark Regulation and the EU Trade Mark Directive include special provisions for three-dimensional marks. According to the law, three-dimensional shapes which result from the nature of the goods, are necessary to obtain a technical result, or give substantial value to the goods, are excluded from trade mark protection in the EU. The Court of Justice of the European Union is quite strict in interpreting the abovementioned criteria for three-dimensional shape marks. As an inherent result, obtaining trade mark protection for three-dimensional shapes becomes increasingly difficult for proprietors. The CJEU gives particular importance to the public interest clause and ensures that common shapes keep open for competition in the market since shapes are finite and certain shapes are in common use. The CJEU justifies the conduct by claiming that time-restricted intellectual property rights such as patent or design rights should not be extended through the trade mark route for specific products. The first and second subsections of the exclusion seem to be appropriate. However, the third exclusion is problematic due to its wording and interpretation by the CJEU. Thus, this study suggests that narrowing the scope of the third subsection would fit the purposes of trade mark protection regarding three-dimensional shapes.