Several courts in the European Union have recently been
preoccupied with appeals regarding three-dimensional (3D) and
colour trademarks. Current EU trademark legislation and the
national laws of all member states where there has been
harmonisation permit the registration of such marks; but what are
the current problems and is there any link between the cases?
Are applicants seeking to push the boundaries of protection?
Article 2 of the EU Trademark Directive (2008/95/EC) (and its
predecessor) permit the registration of "any sign capable of
being represented graphically......including..... the shape of
goods...... provided it is capable of distinguishing the goods of
one undertaking from those of another". Such marks are
also subject to three provisos in Article 3 (1)(e), which exclude
from registration shapes that result from the nature of
the goods themselves, that are necessary to obtain a technical
result or that give substantial value to the goods.
