Can I Register a Trade Mark for Shapes of Goods?

Emily Young

• 29 September 2021
• 10 November 2021
• 5 min read

A trade mark is one way for you to increase the value of your brand. A trade mark helps distinguish your brand’s assets from competitors by giving you exclusive rights to the use of your trade mark. One type of trade mark you can register is the three-dimensional shape of your goods. To help you better understand trade marks, this article will explain everything you need to know about trade mark registration for the shapes of goods.

When is Trade Mark Registration for Shapes of Goods Possible?

Trade mark registration for the shapes of your goods is possible to obtain. However, as with registration for all trade marks, you will need to meet the legislative requirements of a trade mark. This means you will need to show that the shape of your product:

• distinguishes your goods from your competitors; and
• does not already exist in the marketplace.

A trade mark for your shape of goods is referred to as a shape trade mark.

Capable of Being Distinguished 

As with all types of trade marks, your trade mark will need to be capable of being distinguished from your competitors. Your trade mark should serve as a badge of origin. This means that the shape of your goods should be what distinguishes your goods from others in your industry.

To ensure your trade mark is capable of being distinguished, it cannot already be in use. To check this, you will need to conduct a trade mark search. For Australian trade marks, you can do this by searching ATMOSS, IP Australia’s free trade mark search tool.

Shapes Common to Trade

The shape of your trade mark cannot be a shape common to your trade. This is because others in your industry will need access to it. It would be unfair for one business to have a monopoly over a specific shape. 

Common examples would be the shape of a standard wine bottle for wine, or the shape of an egg for Easter chocolate. Unfortunately, it would be difficult to register a trade mark for such shapes because they are used and needed by others in your industry.

Functionality

If the shape of your goods has significant functional features, it will be difficult to register a trade mark for it. This is because other businesses in your industry will likely need access to this functionality. 

One example of a functional feature is a shape that has a specific technical result, like the shape of a fan’s blades that create airflow. Another example would be the shape of a bottle opener. You will not be able to register a trade mark for it because you cannot trade mark something with a functional advantage.

Additionally, if your proposed trade mark is for a simple shape, you will have difficulty registering it. Simple methods are often a result of a cheap manufacturing process. Therefore, a trade mark would impede industry access to such methods. An example would be simple shapes for biscuits, such as rectangles. Therefore, if the shape you want to register is functional, you may wish to revise your application. 

Representation Requirements

When applying to register a trade mark for your shape of goods, you will need to sufficiently show each feature of your proposed trade mark. Some tips for providing a representation for a trade mark for shapes of goods include providing:

• an isometric drawing that shows all the features of your proposed trade mark;
• a photo of the shape of your goods; and
• a description of the trade mark and all relevant details (such as the measurements).

In particular, you should ensure that your written description clearly defines the scope of your trade mark.

Key Takeaways

You can register a trade mark for shapes of goods. As with all trade marks, you will need to show that the shape of your product:

• distinguishes your goods from your competitors; and
• does not already exist in the marketplace.

If you need assistance making a trade mark application for the shape of your goods, our experienced trade mark lawyers can help. You can contact them on 1300 657 423.

Frequently Asked Questions