According to the provisions of the applicable trademark legislation, all signs subject to be represented graphically, including a representation of the shape of goods or of their packaging can be constituted as trademarks; provided that such signs are capable of distinguishing the goods or services of a company from those of others.

In this sense, three-dimensional figures consisting in the shape of the product itself may be trademarks, provided that they distinguish their business origin from the rest of companies in the market. These three-dimensional trademarks must logically meet the same legal requirements as those of any other more “common” trademark.

Nevertheless, given the uniqueness of this type of trademark, it is very important to perform a preliminary registrability study in order to avoid:

• Starting an application process for a figurative trademark whose distinctiveness is limited due to the fact that the perception of such trademarks by the audience is not necessarily the same as in the case of a word trademark or a figurative one, according to case law.
• Starting an application process for a figurative trademark that is highly similar to an existing one. A current example of this case is the notorious legal battle between HARIBO and LINDT companies that is undergoing since 2012 regarding their teddy-shaped three-dimensional trademarks. This legal battle has even reached the highest court in Germany.

SUGRAÑES PATENTES Y MARCAS recommends performing a prior availability study for any type of distinctive sign in order to know the chances of success of a new project in advance and with a comprehensive legal advice.