What is a Three Dimensional Trademark?
A Three Dimensional Trademark is a non-conventional Trademark which makes use of a Three dimensional shape of product or its package/container to achieve distinction in the concerned jurisdictional marketplace. Hence, being clearly distinguished by shape or long time usage is the paramount requirement of the 3D Trademark. Examples of such 3D Trademarks are the contour of a Coca cola bottle, shape of the Zippo lighter, the 3D shape of the Super Cub Scooter of Honda or the toblerone packaging.
3D Trademarks have gained prominence owing to producers wanting to be more distinctive and unique in the markets in which they compete. A 3D trademark is often called a non-conventional trademark since it cannot come under the category of normal 2D category of Trademark registration. To get a 3D Trademark registered the requirements for a normal 2D trademark along with certain specifications must be satisfied. The shape in the 3D Trademark must be easily recognizable and must have acquired distinctive characteristics.
A producer filing for the registration of a 3D trademark must submit an accurate graphical representation of the 3D mark which can either be the shape, symbol, packaging or any other aspect of the product which must be accompanied with a proper description of the mark. A 3D trademark is to be registered as a mark under Section 2 (1)(m) of The Trade Marks Act, 1999. To provide more protection to non-conventional trademarks, the Manual of Trademarks, Practice and Procedure in 2015 was introduced. The Manual lists down the requirements to be fulfilled by the applicant in cases of non-traditional trademarks, including smell marks, colour marks et al, along with adhering to the requirements under Section 2(1)(zb)
What is Industrial Design?
According to the World Intellectual Property Organization, an industrial design constitutes the ornamental aspect of an article. An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color. In simple terms, an industrial design is a type of intellectual property which essentially protects the aspects of the product which enables its operation or functioning. The registration and protection of Industrial Designs in India is governed by the Designs Act, 2000. For an industrial design to be eligible for registration, it must satisfy the following criteria.
1. It should be novel and original.
2. It should be applied to a functional article.
3. It should be clearly visible in a finished article.
4. It should be non-obvious.
5. It shouldn’t be prior to registration or disclosure of the design.
The validity of a registered industrial design is for 15 years which can be subsequently renewed. A producer who has a particular industrial design for his product can file for the registration of the design in order to protect the essential features of the design from infringement. A registered industrial design prevents a third party from making and selling a copy of the design. Examples of famously protected industrial designs are the iPhone, iPad, Braun calculator and many others.
Differences between 3D Trademark and Industrial Design
A 3D trademark and an industrial design are sometimes seen to be the same thing given the similar meanings of both. The similarity between the two is that both intend to protect the product from third party infringement and provide a considerable economic and business value to the company. Let us look at the differences between a 3D trademark and an industrial design.
A 3D trademark is a sign of the distinctive characteristic of a product and is used to identify and protect the particular product from a pool of similar products. On the other hand, an industrial design pertains only to the appearance of the good. It refers to that particular aspect of the product which helps in the smooth functioning of the product.
A 3D trademark can often be used as the logo for the company and can go a long way in building loyalty and reputation for the company. On the other hand, an industrial design defines the build of a product which stands out for its novelty and uniqueness. For example, the bottle 3D trademark of Coca Cola is often used as its logo whereas the design of an iPhone is not used as a logo.
A 3D trademark can be a symbol or a word mark or a shape or anything that represents the product. On the other hand, an industrial design must represent the application or functioning of the product which must be designed by experts.
While a 3D trademark is protected and governed by the provisions of the Trademark Act, 1999, an industrial design is governed by the provisions of the Design Act, 2000.
|Basis||3D Trademark||Industrial Design|
|What does it protect?||Protects the distinctive characteristic of the product||Protects the practical/application aspect of the product|
|Can it be used as a logo?||Yes||NO|
|What does it represent?||Represents the product||Represents the application of the product|
|Governing Legislation||Trademark Act, 1999||Design Act, 2000|
It is important that a clear line of distinction is drawn between these essential intellectual properties since many of its aspects can overlap. Innovation determines the success or failure of a product in the market and it is imperative that innovation and uniqueness is protected and preserved under appropriate and well formulated legislations.