What is a 3D Trademark?

Introduction

The definition of mark under section 2(1)(m)  in the Trademarks Act, 1999 includes “shape of goods” and “their packaging” and any combination of such shape or packaging with other things, fall within the plain and general meaning of the term ‘mark’ thereby making it an inclusive definition. 

In a traditional trademark, it is required to be distinctive and has to be graphically represented, for example word, device, etc. A 3D trademark is a form of non-traditional trademark and also includes colour, sound, smell and taste marks. The aforesaid trademarks are registrable in only a few countries because graphical representation of some of these marks is a difficult issue. 

Registration of 3-D marks

The product shape and packaging qualify for registration under three dimensional trademarks. In order for such trademarks to qualify for registration, it must pass the test of distinctiveness. The European Court of First Instance in Nestle Waters France v. The European Union Intellectual Property Office considered the transparent bottle of Contrex for its mineral water due to a combination of factors. The aesthetic look of the bottle was considered to be distinguishable in the eyes of the customers from other similar goods, thus, the shape became truly specific. In another similar instance, the Coca-Cola company obtained 3D registration of the Coca-Cola bottle in Japan.

Registration Process 

The Applicant while filing the application for a three dimensional trademark must include a two dimensional or a photographic reproduction as per rule 26(3) of Trade Marks Rules, 2017. The reproduction that is furnished normally in such an application consists of three different views of the trademark. In the event that the three dimensional mark is not clear, the Registrar may demand up to five further different views of the mark along with the written description. If it still lacks clarity, the Registrar may ask the applicant to furnish a specimen of the trademark.

Key Differences between 3-D marks and designs

It is fairly easy to confuse design as defined under the Designs Act, 2000 with three dimensional trademarks as they deal with shape and packaging. However, both serve a different purpose. The fundamental distinction between the two was laid down by the Delhi High Court in Corning Inc. v. Raj kumar Garg. The court observed that the fundamental definition of design relates to the features of a shape, pattern, composition or lines or colours applied to an article which appeals to the eye whereas the aim of trademark is to connect the mark put on a product to its manufacturer or producer who may have acquired reputation in an unregistered trademark due to prior use or application in the trade.

Thus, a trademark signals to the mind regarding the source or manufacturer of the goods while the purpose of the design is to attract the consumer through appealing to the eye.