In addition to the protection of word marks or figurative marks, the three-dimensional design or shape of a trademark can also be protected – the 3D trademark. This is a figurative trademark that protects the packaging or shape of the product.
We give you an overview of the most important elements of the application and four helpful tips for a successful registration of a 3D trademark.
Overview: Elements of the 3D trademark application
The application is for the most part filed in the same way as any other trademark application. It is possible to register online (with or without signature) or in paper form.
Decisive for a 3 D trademark application is Article 3 of the German Trademark Act, which is referred to in Sections 1 and 2:
Article 3 Section 1 MarkenG:
All signs, particularly words including personal names, designs, letters, numerals, sound marks, three-dimensional designs, the shape of goods or of their packaging, as well as other wrapping, including colours and colour combinations, may be protected as trade marks if they are capable of distinguishing the goods or services of one enterprise from those of other enterprises.
Article 3 Section 2 MarkenG:
Signs consisting exclusively of a shape
1. which results from the nature of the goods themselves,
2. which is necessary to obtain a technical result, or
3. which gives substantial value to the goods
Three-dimensional shapes can therefore generally be protected as trademarks, but not if the shape is an “essential characteristic of use” of the product. This is always the crucial point in court proceedings on 3 D trademarks.
The scope of protection of a 3D mark depends on the goods and services for which it is protected. Therefore, it is essential to attach a list to the trademark application. This is also no longer expandable after registration and must therefore be complete. All goods and services are divided into 45 classes according to the “International Classification of Goods and Services for the Registration of Marks”, so-called “Nice Classification”.
The filing of a representation of the 3D mark (by photos or other illustrations) is sufficient for the application; the three-dimensional mark itself does not have to be filed.
Since the DPMA does not check whether your trademark already exists in a similar or identical form, you must ensure yourself that you are not infringing any third party rights.
4 expert tips for a 3D trademark application
To make it easier for you to apply for your (3D) trademark, our patent attorneys have compiled 4 expert tips for a 3D trademark application:
What should potential applicants look out for, especially in the case of a three-dimensional (3D) trademark?
As with all brands, there must be an origin function, i.e. the product to be protected must be clearly assigned to its company of origin. The product must also clearly stand out from the norm or industry standard. Consumers should also be aware of this difference. Furthermore, a 3D mark may not be technically conditioned.
What is there to consider during the preliminary search?
The search is relatively time-consuming, since it is more difficult to search for a product than, for example, to search for a Word mark. It is important to consider the classification or group of goods and services of the product to be protected.
What is there to consider with the pictures for the registration?
The uniformity of the illustrations is important here. The product to be protected should be optimally visible against a neutral background and from all sides. It should be mentioned that it should appear in the same condition on every picture.
What can I do if my product is rejected as a 3D brand?
Alternative protection variants are the patent application, which only protects the idea. It would also be a good idea to register as a design. A design application is easier than an application for a 3D trademark, as no origin function is required here, for example.
Length of examination
In contrast to a patent, for example, trademark applications are filed very quickly: In the quickest case, i.e. the fastest possible correct transfer, the use of the online application and the request for accelerated examination, your 3D trademark will be registered in less than 6 months.
Read more about recent judgements in this context:
- Dec 2017: Nepresso coffee capsules lose trademark protection in Germany – for the moment
- Oct 2017: Ritter Sport retains protection of its quadratic three-dimensional trade mark
- June 2016: EUIPO rejects Grupo Bimbo’s 3D Trade Mark application
Are you interested in brand or trade mark protection?
Please take your chance and contact us. Our lawyers are experienced in trademark and patent law, national and international law.