March 29, 2024
Knowledge Trademark

Trademarking Shapes

trademarking shapes

Trademarking Shapes

If you’ve been following along with our other articles, you’re aware that you can apply for several unconventional trademarking options to strengthen brand identity. Scents, victory gestures, animations, and shapes are among the types of intellectual property security that are important for every business to know and understand. Yes, even trademarking shapes! 

Throughout our youth, we’ve been exposed to various memorization mechanisms that help train our brains to recognize simple and complex shapes. Whether in geometry class or outside the classroom, our brains are constantly programming to remember specific shapes and their associated meaning. We can infer a corresponding use of an object’s shape given the context. When we see a chair, couch, or object that looks like it is used for sitting, our brain innately tells us, “that’s a chair. A chair is for sitting.” Likewise, when we see a spoon, fork, or another utensil, we understand it is a vehicle for food, and its intended purpose is to help us eat. Shapes help us identify and make sense of the world around us, and we can infer intended uses for particular objects or products. 

Nontraditional trademarking laws state that you can trademark a distinctive shape of a good, or a shape to be used in product packaging. Can you think of a specific branded product you’ve used that has an unusual shape? If placed before you was a memory game where you had to guess 2D or 3D shapes in a solid color, does anything come to mind that you would instantly recognize? 

3D Shape Trademark Criteria

As stated above, products of unique shapes may be granted protection under the jurisdiction of trademark law, and there is a good reason to consider it when developing your brand. Of course, the shape in which you trademark requires association with a specific source. Trademarks are intended to protect aesthetic, artistic elements of how the goods are presented, not to prevent others from making a design that would improve upon the goods and add value because it makes the goods more functional. 

The caveat of trademarking a shape is that the shape of the design must not enhance value to the goods or already be widely known. If the product’s intended function is built within the shape, it is not a registrable trademark. If there are only so many ways to design such a product, it might not be registrable.

There are many common shapes in which no single establishment should be allowed to obtain an exclusivity–also known as a monopoly. The more unusual or fanciful the shape, the more likely the jurisdiction will approve. Let’s take football. A football is an illustration of the type of shape that will be denied protection. Why? Because the shape itself is a fundamental function of the product. A football couldn’t perform as it does if it were in the shape of a sphere or cylinder, and if a football shape were trademarked, no other business could create a football without facing litigation. If you want to protect something functional, you would need to patent it.

Another example of a non-registrable shape is a Lego. The inherent function of a Lego lies within the shape itself–it is a building block that acts similarly to a brick. If Lego was granted access to trademarks in the shape of their building block, no other manufacturer could create a building block without risking copyright infringement.

Make sense?

Now that we’ve got that out of the way, let’s go over what to include in your 3-D shape mark application. Assuming you have both a novel and distinctive shape for the design or packaging of your goods, you might be able to secure registration of your shape trademark for packaging, so long as within your application you…

  • Precisely define the shape with a written description
  • Illustrate the shape mark in the form of perspective drawings with various angles
  • Include other representations of said shape in multiple formats, such as photographs,  showing all the features of the trademark

Remember, your shape must also differ significantly from similar products and packaging commonly found in commerce. To help you understand what this could look like, we’ve provided examples of trademark shapes in different product categories that have been successfully trademarked. It is also essential to know that if the shape of your product changes, you might risk losing your trademark as it runs the risk of no longer being considered distinctive. Think about how long your desired shape will be an integral part of your product or packaging and whether you might attempt to rebrand the shape of your packaging or product later on down the line.

Exemplary Trademarked 3D Shapes

3-Dimensional shapes can take on countless different forms. Let’s walk through some classic examples of shapes that have been trademarked over the years, becoming a staple of the company and brand image. 

Functional Objects

Gibson’s Guitars

Any guitarist or music lover would be able to recognize the identifiable shape of a Gibson guitar. What gets tricky with this example is that Gibson has dealt with several court hearings related to their shape as a function of their product, perhaps not distinctive and therefore justifiable enough for it to continue being trademarked. However, luckily for Gibson, in the trial, the jury upheld that the Gibson guitar shapes are not generic and, therefore, should be accepted as trademarked shapes. Because of this trademark, Gibson has been able to sue another company whose guitar model exactly resembled their unique shape, shielding them from fraud.

Volkswagen’s (Kombi/Bulli) Minivan

Most commonly recognized as a minivan or camper van that has become an iconic part of the Volkswagen brand, the VW Kombi van has been a long-established trademark. In fact, it is one of the few registered vehicles that holds a trademark, or did anyway. Sadly, production of these valuable vehicles stopped in 2014, making the cult van all the more priceless to car collectors and van lovers across the globe.

Zippo’s Lighters

Zippo has gained a high-class status for its sleek rectangular metal, windproof design. This distinctive butane torch lighter received trademark registration approval in 1998. It is noticeably identifiable when placed alongside lighter competitors, with its flip feature stealing the show–a true force not to be reckoned with.

Food

Coca-Cola’s Glass Flute Bottle 

The contour and distinct shape of the Coca-Cola bottle–an aesthetic vehicle for drinking the wildly popular, caffeinated sugar beverage–is arguably one of the most famous and well-recognized trademarked shapes. Less often do we see bottles for any liquid trademarked as it is much more difficult to justify the bottle as a non-inherent function. Yet, somehow Coca-Cola managed to keep others locked out of selling drinks from similarly flute-shaped bottles. This enhanced aesthetic was an instant draw for soda enthusiasts and facilitated brand growth for the billion-dollar business.

Heinz Ketchup

Heinz has protected several forms of intellectual property for their brand, including their logo, 57 varieties of phrases, and the bottle used to dispense the tomato-based condiment. The protected and registered trademark of the iconic ketchup bottle has saved the company from copycats who’ve tried to mimic the style of their condiment container. Much like Coca-Cola’s flute-shaped bottle, some may argue that the bottle itself is an inherent function of the product. However, its novel appearance and distinctive octagonal shape helped them win the case for trademarking.

Pringles Chips

When you think of chips, are there any that stick out to you because of their appearance? A Pringle’s curved shape was sufficient to be approved for trademarking. In 1976, the potato chip brand was granted a patent for its thin, curved potato shapes, which is a challenging test to pass due to trademarking criteria. Once again, the novelty of the chip’s shape became so identifiable that it genuinely set them aside from the rest. Think about it–if someone placed 100 chips before you, a single Pringle would likely be like finding a sheep among a pack of wolves. Easy peasy.

Hershey’s Kisses trademarking shapes

One of the earlier 3-D shape trademarks the United States has seen is the adorable and dainty Hershey’s Kiss plume shape, registered in the 1920s. The dollop-like plume is not an intrinsic function of the chocolate itself, and has become a staple in the world of sweets that no other brand has even tried to replicate. 

Toblerone’s Chocolate Bar

Another example that proves not all chocolate is created equal is the Toblerone case. The strange triangular shape of their chocolate bar separates their appearance from countless other classic chocolate bars, making it distinct and identifiable to candy enthusiasts. Yet still, Nestle–the manufacturer of Kit Kat–was not so fortunate with its attempt to trademark its chocolate bar shape. While distinctive and playful, it failed to meet the criteria required to trademark it as a shape. What gave Toblerone the advantage? 

The triangular chocolate shape was also considered a central component to their marketing campaigns in the 90’s. In their advertisements, they used descriptive phrases such as “made from triangular almonds, triangular trees, triangular honey, from triangular bees.” This became a catchy and comical way for avid chocolate eaters to associate the shape with the Toblerone brand.

Shape Trademarks Are Effective

Do you have a product that encompasses an “out-there” appearance that isn’t an inherent function of your good or service? Trademarking a shape related to your product can be an effective strategy if you’d like to protect your intellectual property. Adding a decorative element or distinct aesthetic features to the shape of your packaging or product can truly make your brand stand out. Consumers will quickly learn to identify your brand amongst a sea of sameness. 

The Coca-Colas of the world might not need to register their bottle shape anymore, as they have gained a global reputation. Once you’ve achieved such status, both consumer law and common law trademarks can protect you. However, until then, it is time to consider registering the design or shape as a trademark. Before disclosing your unique designs to the public, design protection is essential. 

Are you ready to protect your novel product or product packaging shape?

Time to Shape Up! Protect Your 3D Shapes Today!

 

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