A Comparative Study on Three Dimensional Shape Marks in the European and Turkish Practice

Trademark owners' tendency in attempting to register as trademarks not only word or figurative marks used on their products but the shape of the products themselves raised the question on whether trademarks consisting of three dimensional product shapes and product packaging generally protected as industrial designs could also be registered as trademarks. Despite being regarded as an "unconventional one", shape marks are regarded to be registrable just like the other signs capable of being represented graphically and on the distinctiveness point, it is European Court of Justice's ("ECJ") settled practice that "the criteria for assessing the distinctive character of three dimensional trademarks are no different from those applicable to other categories of trademarks"(C-136/02 P, para.30). Despite ECJ's interpretation of equality on distinctiveness assessment of all kinds of trademarks, it is seen in practice that Community shape marks are not only subject to an