Protection of Shapes as Trademarks


This article sets out to compare the practice concerning marks comprised of the configuration of goods or packaging. It discusses problems resulting from the dual nature of shapes, which can embody functional features or aesthetic embellishments and identify a products' origin at the same time. It juxtaposes the Japanese Patent Office's practice regarding the prerequisites for registration and the approach of the European Community Courts and the Office for Harmonization in the Internal Market (OHIM).

Emphasis is placed on the tests for inherent distinctiveness and non-functionality, the latter illustrated by the differing approaches of the European Court of Justice and the German Federal Supreme Court. While the system is still in the process of being carved out, it can already be said that European practice takes a generous view toward the registration of (parts of) product configurations and packaging, in particular the shape of bottles.

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