EU TRADE MARK LAW TAKES SHAPE

The IPKat paid a visit to St Peter's College Oxford's IP Research Centre this evening to hear Mr Justice Pumfrey address an enraptured audience on EU jurisprudence on the registrability of product shapes as trade marks. He particularly highlighted the recent tendency for objections to product shape applications to be lodged under Article 3(1)(b) of Directive 89/104, rather than Article 3(1)(e). Article 3(1)(b) bars the registration of signs which are devoid of distinctive character, while Article 3(1)(e) lists grounds specifically addresses to the unregistrability of shape marks (including functionality). He also identified the beginnings in ECJ judgments of an attitude that certain objections under Article 3(1)(b) cannot be overcome by the applicant showing acquired distinctiveness under Article 3(3).

The IPKat is intrigued by Mr Justice Pumfrey's approach. The Directive makes no mention of a special class of Article 3(1)(b) signs that cannot be saved from being unregistrable through acquired distinctiveness. He waits to see if the ECJ will in fact recognise such signs.
Exotic shapes here and here
The shape of things to come: click here