Trade Marks: Lipsticks And Coffee Capsules

Product shapes have traditionally been protected by way of registered designs. But it is sometimes possible to register the shape of a product as a trade mark. This is a tricky area of trade mark law, because consumers don't always perceive the shape of a product as a badge of origin, and the shape of the product is often utilitarian. Two recent EU cases illustrate some of the issues.

case one: the "revolutionary" lipstick

The French company, Guerlain, filed a trade mark application in the European Union (EU) to register the shape of one of its lipsticks - there is a representation of the trade mark in this article, an article that I found very helpful. Read article here.

Applications for shape trade marks seldom go smoothly and this was no exception. The application was rejected on grounds of non-distinctiveness, with the argument being twofold. The shape does not depart sufficiently from the norm, and consumers will not perceive the shape as a badge of