Section 3(2) of the Trade Marks Act 1994 states:

(2) A sign shall not be registered as a trade mark if it consists exclusively of-

(a) the shape which results from the nature of the goods themselves,

(b) the shape of goods which is necessary to obtain a technical result, or

(c) the shape which gives substantial value to the goods.

This is known as an absolute ground for refusal of registration of a trade mark in common with the other grounds stated in s3 of the Act.  A leading case is Dyson at the European Court of Justice (ECJ) where Dyson attempted to trade mark transparent bins for vacuum cleaners.  There was an objection to this under s3(2) as well as prominent objections to the drafting of the specification being too vague in referring to the (shape) sign shown in the figures.

The logic behind s3(2) is that it is not possible for a trader to monopolise (perhaps permanently as trade marks are infinitely renewable in 10 year periods) a shape that is necessary to obtain a technical effect, thereby circumventing the 20 year monopoly period provided by patents.

In the Megablocs v Lego case, Lego tried to trade mark the shape of their bricks, but were prevented from doing so under this policy consideration, as although it is possible to achieve the same technical result with variant shapes, the Lego shape had a primary purpose of having a technical effect.

However Jeep managed to trade mark their distinctive grille on the ground that the average consumer expects the shapes of grilles on cars to indicate trade origin.

Trademarkroom