Protecting a product shape: 3D trademark or design?

Trademark registration is an essential step in protecting your business. You can consult our complete trademark registration guide.

Most businesses are aware that a name or logo can be protected through trademark registration.

But did you know that the shape of a product, its silhouette, appearance or packaging, can also be protected by intellectual property rights?

Two main legal tools are available: the three-dimensional trademark (3D trademark) and the registered design. Both can be used to secure product shapes, but they serve different purposes and follow different legal rules.

So which option should you choose to protect your product shape effectively? Here are the key points to understand.

What is a three-dimensional trademark?

A three-dimensional trademark is a type of trademark that protects the appearance of an object in three dimensions, including its shape, configuration or even its packaging, provided certain conditions are met.

Examples include:

• The distinctive shape of an iconic bottle (e.g. Coca-Cola).
• The specific packaging of a perfume or a chocolate product.

To be accepted as a trademark, the shape must be:

• Distinctive, meaning it is perceived by the public as an indicator of commercial origin; and
• Not purely functional, i.e. not dictated solely by technical or utilitarian requirements (nor merely decorative).

Key advantages:

• Potentially unlimited protection, renewable every 10 years.
• Strong legal presumption of validity once registered, following substantive examination by the trademark office.

What is a registered design?

A registered design (also referred to as an industrial design) protects the external appearance of a product.

Unlike trademarks, designs are not intended to indicate commercial origin, but rather to protect a visual or aesthetic innovation.

Examples includes:

• The design of a piece of furniture.
• The shape of a smartphone or household appliance.
• A surface pattern or stylised packaging.

Key advantages:

• Fast and flexible registration process, with no substantive examination. However, for a design to be valid, it must meet the cumulative requirements of novelty and individual character.
• Deferred publication for up to 30 months, useful for keeping a product confidential before launch.
• No obligation of use.
• Broad scope of protection, defined by the visual representations filed, not by product or service classes.

3D trademark vs registered design: key differences

Protecting the shape of a product requires a properly prepared trademark filing.

Which protection should you choose for your project?:

The right choice depends on your business and brand strategy:

• You want to build a strong, long-term brand identity based on a distinctive and recognisable product shape?
  → A three-dimensional trademark may be appropriate.
• You are launching a product with a strong aesthetic component and want fast protection without use requirements?
  → A registered design is usually more suitable.
• You are pursuing a long-term strategy and want to maximise protection?
  → In some cases, combining both protections is possible, and often recommended.

How Tradamarca can help

At Tradamarca, we assist clients in selecting the most relevant intellectual property protection strategy for their visual assets, in Switzerland and internationally.

Our approach is legal, strategic and tailored to each project:

• We advise you on the differences between trademarks and designs, as well as on validity requirements.
• We support you throughout the filing, monitoring and renewal of your rights.
• We provide ongoing legal watch services to effectively defend your creations against imitation.

When the time comes to proceed with the filing of the trademark, the relevant goods must also be identified under the Nice Classification.

In summary:

• The shape of a product can be protected either by a three-dimensional trademark or a registered design.

• Both rights fall under intellectual property law but serve different purposes and follow different rules.

• The right choice depends on your objectives: duration, branding strategy, time-to-market

Tradamarca supports you at every stage to secure your rights, across all dimensions of protection.