Section 3(2) raises other prominent cases on non-conventional marks.  The primary point of consideration in any such case is the European Court of Justice (ECJ) rulings in Windsurfing Chiemsee.  In Windsurfing Chiemsee the ECJ laid out ground rules for a sign to be registerable.  It must be sufficiently clear, precise, self-contained, durable, objective and easily accessible. 

This has great value in assessing non-conventional signs, notably for instance smells (Sieckmann) and relates particularly to the grphic representation of a mark in such cases.

However with regard to shape marks such concerns are merely a matter of good drafting and are unlikely to cause problems.  What is often more of a concern and at root of most objections is the policy implications of registration. 

Had Dyson worded the specification differently, or been less ambitious it is arguable that they may have succeeded.  The specification attempted to claim the shape mark of transparent bins (the idea) as referred to, rather than the transparent bins (the objects) as demonstrated.

Another, if not the, leading case on 3(2) is Phillips v Remington in 2002 on a Phillips application to register the 3 headed design of shavers as a trade mark.  In this early significant case the ECJ held that a sign consisting exclusively of the shape of a product is unregisterable by virtue of 3(2)(b) if it is established that the essential features of the shape are attributable only to the technical result.

Trademarkroom