What is a shape trademark?
If the three-dimensional configuration of an object is distinctive enough to identify a brand, it may be a shape trademark. This distinctiveness must be a non-functional “added extra” that contributes to the brand identity and is vital for its commercial success. A classic example is Coca-Cola’s bottle, and other examples include chocolate biscuits (like Tim Tams) or highlighters, or even a hairbrush. If you want to register a trademark that is somewhat irregular, you should speak with a trademark lawyer about trademark registration.
What should I have in mind when applying for a shape trademark?
When the trademark officer is assessing your application, they are considering the commonality of the shape you’re seeking to trademark. Is it a shape that, if trademarked, would unfairly limit others in their use of this shape? For example, a perfect sphere might not be suitable to trademark because it is not very unique. Also, ask yourself the question: Is the shape crucial to the functionality of the product? Wine bottles are a good example of a shape that cannot be protected due to its utility value.
If the shape you’re attempting to trademark is not enough of an identifier of your product, there could be problems in differentiating it, and difficulties in getting it registered. You will have to prove that this particular shape is a unique identifier of your goods or services. Speak with a trademark lawyer so they can review your application before you submit it.
What must I prove to trademark a colour or combination of colours?
Depending on what category of goods or services your application falls into, there must be no actual need for that particular colour in that industry. What are the typical colours used in your industry? Are the colours you’re applying to have trademarked shades of these common colours?
Put simply, the colour shouldn’t be vital to the utility or functionality of whatever the product is. Is the colour something that all competitors must continue to have the right to use? One such example might be the use of yellow for warning symbols. Unless your application falls outside these exclusions, you’ll struggle to get the colour trademarked successfully. Like the shape trademark requirement, you must be able to show that this colour is a distinctive identifier of your product. A good example of a successful application is the colour orange for Veuve Cliquot champagne:
To prove that this colour is distinctively yours you will be required to show evidence proving your continued use of the colour and how this colour forms part of your reputation.
Are there limitations on the types of font I can use with my trademark?
It’s possible that your trademark protection will extend to other fonts if your registration was in a regular or cursive font, although this is not a certainty. If you use a very distinctive font, your registration might not extend to expressions of the same words in a different font or style.
In general though, fonts are not something that can be trademarked (although the names of fonts can). The protection given to a trademark of a name or slogan in a distinctive style is really for that specific display of words in that particular style. As with other types of trademarks, infringement is a matter of degree. Speak with a trademark specialist to get the right advice.
Get in touch with LegalVision – the specialists in trademarking. We’ll give you tailored answers to the most difficult questions. Trademarking is unique and must be dealt with on a case-by-case basis. For advice that is personalised for your business, call us on 1300 544 755 and give your business the protection it deserves.
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