SHAPE MARK – AN UNCONVENTIONAL TRADEMARK

In recent times, one can see the change in the perception and coverage of the term trademarks. Now trademark is not only connected to the logo, words, etc, but with the introduction of unconventional trademarks such as sound, smell, colour, and shape, it widens the scope for trademarks. In today's time, the market has become highly competitive. The brands need to evolve constantly. Shape plays an important role in the trademark system as the average India customer not only identifies the product by its name, but also by its shape. To gain an advantage over competitors, it is really important to register the shape of a particular product.

One of the famous cases of shape trademark is the one between the two well-known companies, Nestle and Cadbury. Nestle was denied trademark registration for the shape of its Kit-Kat bar in Europe after Cadbury opposed the application saying that the shape of the Kit-Kat bar is not distinctive and therefore it should not be approved as a trademark.

In the United States, shape trademark can be registered if it acquires distinctiveness and is not functional, that is,  it should be easy to distinguish the product from others and shape of the product should not be essential to the purpose of the product, use of the product or it should not affect the quality or the cost of the product. The design and the shape of the product does not acquire inherent distinctiveness so the company requires to show that the shape of the product has the secondary meaning to its product. One of the most famous trademarks of all time is the shape of the bottle of Coca Cola. Its unique shape has gained recognition all around the world. The Coca Cola bottle acquired the trademark for its shape in 1970 in the US. It is considered that the customers associate Coca Cola with the unique shape of its bottle; therefore the shape of the bottle acquired distinctiveness and secondary meaning.

In the United Kingdom, shape or the packing can be registered as a trademark. And the graphical representation of the same is considerably easier and no problem is faced in that except in very few cases.The laws related to the shape trademark in India and U.K are quite similar when it comes to the provision of registration of shape mark and the condition which are required to be fulfilled by the shape mark.

In the U.K, registration of the trademark can be rejected, which consists exclusively of the shape:

1. The shape which itself is the result of the nature of good.

2. The shape essential to achieve a technical result.

3. The shape which gives substantial value to the goods.

Under the Trademark Act, 1999 of India, the shape of the goods and their packaging is included within the definition of the term'trademark'. The Act came into existence in the year 2003. And to register the shape of the product or its packaging or any three-dimensional object as a trademark, it should be distinctive and graphically represented.

In Singapore, 3D trademark was not granted to Ferrero Rocher over its packaging. But In India, the situation was completely different. In the case of Ferrero Rocherv. Richie international in the year of 2008, Delhi High Court gave the judgment in favour of Ferrero Rocher and awarded them damages against the Chinese manufactures for infringing its trade dress.

Some of the shape trademarks in India are-                                                                              

1. Toblerone, a chocolate bar registered by Kraft Foods Schweiz Holding Gmbh.

2. Gorbatschow, a branded vodka bottle.

3. Zippo Lighters under the name Misc.Geo.

India has fortified in terms of registration of the trademark as the legal framework makes it simple. If the company applies for the shape trademark, or packaging according to the laid down rules and regulations and can show that the shape mark distinguishes its product from the competitors in the market, then there is no hurdle in to the registration of that trademark.

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