Among the changes in the IP world we seem to be experiencing a pan-European clamping down on the registration of 3D trade marks. Back in the 1990s, following the introduction of the new Trade Marks Act 1994, registration of 3D marks was the thing to do – everyone who was anyone had one, whether it was the shape of your snazzy drinks bottle, the shape of your four-fingered biscuit or the shape of your sunny drink carton. Now, however, the courts are revoking them left right and centre as being devoid of distinctive character themselves: the courts are saying that the public recognition of the 3D marks comes from the conjoined use of the 3D shape with the main brand. Accordingly, the 3D shapes are being revoked and the number of actions against 3D shape marks appears to be on the increase.
There are of course, other Intellectual Protections available across the EU which will protect 3D shapes; community registered design is among them, although the products must fulfil the requirement for ‘eye appeal’ and the duration of protection is capped at 25 years (subject to renewal ever 5 years). Protection under a trade mark, as all diligent readers will know, lasts for as long as you wish to pay the renewal fees. We wonder whether, as we move along the ever faster pace of commerce, our timeframes for protection seem to be speeding up too.