Shaping up: the law on shape trade marks clarified

Nestlé may feel it did not get much of a break from a recent Advocate General’s opinion which undermines its hopes of registering the shape of its Kit Kat chocolate bar; meanwhile, there is better news for Lego’s registration of its ‘manikin’ figure.


Shape trade marks

IP Ownership

A shape is capable of being registered as a trade mark. A well-known example is the Coca-Cola bottle.

There are some exceptions peculiar to shape marks which cause many applications to fail, namely signs which consist exclusively of a shape which:

  • results from the nature of the goods themselves; or
  • is necessary to obtain a technical result; or
  • gives substantial value to the goods.

The aim of these exceptions is to prevent trade mark protection from granting a monopoly over technical solutions or functional characteristics of a product which may be more appropriately protected by other means.