A three-dimensional mark is a registration type that uses a three-dimensional sign as the trademark; common forms include the shape of the goods themselves, the shape of packaging or containers, and independent shapes unrelated to the functional structure of the goods. Its core difference from word and device trademarks is that a shape often simultaneously serves a functional or aesthetic role, so the law sets express exclusions on the registrable scope.
Legal Basis
Article 8 of the Trademark Law provides that any sign capable of distinguishing the goods of a natural person, legal person, or other organization from those of those of others—including words, devices, letters, numerals, three-dimensional signs, color combinations, and sound, as well as combinations of these elements—may be applied for registration as a trademark.
Article 12 then sets the exclusion: where a three-dimensional sign is applied for registration as a trademark, shapes resulting solely from the nature of the goods themselves, shapes necessary to obtain a technical effect, or shapes that give the goods substantial value may not be registered. These three categories correspond to functionally necessary and aesthetically determined shapes—resources shared by the trade that one party may not monopolize.
The Three Excluded Categories
- Shapes resulting from the nature of the goods themselves: shapes naturally inherent to the goods' intended use, such as the spherical shape of balls or the sheet form of paper products;
- Shapes necessary to obtain a technical effect: shapes whose form itself provides a technical function, such as structures facilitating stacking, heat conduction, or slip resistance;
- Shapes that give the goods substantial value: shapes whose aesthetics directly determine the value of the goods, such as the distinctive styling of decorative ornaments.
The rationale for exclusion: these shapes should not become tools of source identification; allowing exclusive rights in them would impede legitimate competition in the trade.
Distinctiveness Requirements
Three-dimensional signs must still possess distinctive features:
- Three-dimensional forms highly close to the function or generic shape of the goods are usually found lacking in inherent distinctiveness;
- Unique shapes unrelated to the function of the goods themselves—such as cartoon figures or unusually shaped containers—possess a degree of distinctiveness;
- Shapes lacking inherent distinctiveness can acquire distinctive character through long-term, extensive use that enables the relevant public to identify the source by them, but the evidentiary threshold is high.
Application Points
- Declare in the application that the trademark is applied for as a three-dimensional sign and explain the manner of use of the trademark;
- Submit representations that clearly and completely show the three-dimensional shape, usually requiring multiple views or a perspective rendering;
- Clarify whether the trademark is used on the goods themselves, packaging, or containers, to avoid mismatch between the representation and the manner of use;
- A three-dimensional mark usually should not be the sole means of protection; consider combining it with a design patent and copyright registration for layered protection.
Common Pitfalls
A common confusion is believing that applying for a design patent on product packaging already confers trademark protection. A design patent protects the aesthetics of the shape and has a limited term; a trademark protects the source-identifying function and can be renewed, but the threshold is distinctiveness. The two can run in parallel but cannot replace each other. More importantly, even where a shape is aesthetically pleasing, if it is mainly determined by function, registration as a trademark will still be blocked by Article 12.
How these concepts apply in specific cases still involves detailed differences; you may consult a registered agent via MyTMBee for case-specific analysis.