Fhima, Ilanah; (2024) Rethinking Distinctiveness of Shape Marks. Intellectual Property Quarterly , 2024 (3) pp. 179-205.

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Abstract

Consumers recognise goods by their shape as well as by how they are labelled. However, shape marks potentially grant monopoly rights in the shape of goods, which can result in functional characteristics falling into the hands of a single undertaking. The Court of Justice of the European Union adopts a cautious approach to registering shape marks. Despite the competitive risk such marks pose, the Court's reasoning has always been based on arguments that consumers will not generally view shapes of goods as indicative of origin, and not on the need to keep shape marks free for others to use. This article draws on psycholinguistics to argue that the CJEU’s approach to consumer perception is justified. However, it draws on object recognition theory which posits that there is a finite number of basic components from which shapes can be composed, suggesting that there is a competitive risk to registering shape marks which should be recognised in how the grounds for the refusal of registration are applied to shape marks.

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