The world-famous Ferrero successfully defended its 3D trade mark for the famous Tic Tac container.
https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00911603651
This case relates to the Czech producer of identical products and similar containers.
The Czech manufacturer argued that the Tic Tac container was not part of the trade mark and has a technical function that adds significant value.
The judge disagreed with this argument. The Tic Tac trade mark has no technical function. Besides, the average consumer buys Tic Tac for its significant value given by the container.
Moreover, Ferrero has registered its three-dimensional mark in accordance with trade mark Law. The Tic Tac container represents the 3D trade mark, and this feature is used for commercial and advertising reasons.
For a three-dimensional trade mark, the policies described below will be followed in conducting an examination regarding distinctiveness:
- A three-dimensional trade mark consisting of a shape recognized by consumers as intrinsic to the designated products is considered to lack distinctiveness.
- If distinctive letters or symbols are affixed to a three-dimensional shape that is initially considered non-distinctive, and it is evident that the mark is being utilized as a symbol for identifying and representing the origin of the goods or services, the mark will be deemed to possess distinctiveness.
- A three-dimensional trade mark consisting solely of a shape that can only be acknowledged as being within the scope of a simple and common three-dimensional shape will be deemed to lack distinctiveness.
- Even if three-dimensional trade mark falls into the first and third rules, it will be distinctive, if the trade mark is acknowledged by consumers as being connected to a business and the trade mark has become sufficiently well-known to enable it to be distinguished from the shape of similar goods, through use over a long period of time.
Ferrero is a good example of protecting your goods. Compared to a patent, the main advantage of a 3D Trademark is that it can exist indefinitely, while a patent can last up to 25 years.
If you would like some further information about 3D marks, please get in touch with the team today.
