Communication No 2/98 of the President of the Office of 8 April 1998
concerning the examination of three-dimensional marks
The purpose of this Communication is to explain the practice of the Office in
examining applications for registration of three-dimensional marks.
- In accordance with Rule 3 (4) of the Implementing Regulation, applicants
applying for registration of three-dimensional marks must make a corresponding
indication in the application. The application form prepared by the Office
provides a box that is to be checked in these cases. In addition a
representation of the mark must be supplied. The representation in photographic
or graphic form may contain up to six different perspectives of the mark.
When the application does not contain a corresponding indication and when it is
not clear from the circumstances that registration of a threedimensional mark
is requested, the Office will treat the application as a request for a
two-dimensional 'figurative mark'.
When the box 'figurative mark' has been checked in the application form or when
the application contains a corresponding indication, the Office will treat the
application as requesting registration of the mark as a twodimensional mark.
- Three-dimensional marks may, in addition to the three-dimensional shape
itself, also contain verbal or figurative elements applied to that shape.
- An application requesting registration of a three-dimensional mark may also
claim colour at the same time, by making a corresponding indication to that
effect, as is provided for in Rule 3 (5) of the Implementing Regulation. In
these cases, the colours making up the mark must be indicated. The
representation must also be in colour.
- Pursuant to Rule 3 (3) of the Implementing Regulation, the applicant, when
requesting registration of a three-dimensional mark, may also provide a
description of the mark. Such a description is not mandatory but may be useful
because it may permit the Office to determine the nature of the mark. The
Office will object to a description only if it obviously is at variance with
the representation of the mark.
- In examining three-dimensional marks for absolute grounds of refusal,
primarily the provisions of Article 7 (1) (b), (c), (d), and (e) of the
Community Trade Mark Regulation are involved. Under these provisions, a mark
may only be refused if it consists exclusively of one of the elements referred
to in these provisions and the ground of refusal exists in relation to the
goods or services for which registration is requested.
Accordingly, the Office will reject, on one or several of the grounds referred
to above, three-dimensional marks consisting exclusively of standard or
ordinary containers (bottles, boxes, etc.) or the standard or usual shape of
the goods for which registration is sought. Where the three-dimensional mark
contains other elements (verbal or figurative elements or colour) and when
these other elements alone or in combination with the three-dimensional shape
are sufficient to render the mark registrable, the Office will not refuse
As in cases of word marks and figurative marks consisting of several elements,
some or all of which by themselves would not be registrable, the Office, when
accepting such combination three-dimensional marks, will not point out to the
applicant, or to the public when publishing the mark, the basis for accepting
Consequently, when such combination three-dimensional marks are published or
registered, this cannot be taken as an indication that the Office would have
accepted the three-dimensional shape itself as registrable.