ajay amitabh suman (ADVOCATE) 08 July 2017

Shape as a trade mark and design

The shape of a product can be registered as a Design. Trade Marks Act 1999 also provides that shape of a product can be registered as a trade mark. But trademark and design are mutually destructive to each other. Then what are the factors which makes the shape of a product falls under the category of trademark and not as a design.

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Priyanka Verma (Advocate, Pune Area) 21 July 2017

In my opinion the design act essentially determines the novelty factor in the shape of the product whereas to get the registration of shapes of goods as a trademark, to identify a particular trade origin in connection with specific goods and/or services it must have a distinctive feature, helping the shape to function as a trademark.

Sometimes a shape of a product can serve as a source indicator under TMA and also fulfill the criteria of registration under the Design Act. In such case dual protection from both design and trademark act is needed.

ajay amitabh suman (ADVOCATE) 21 July 2017

Priyanka ji

The Definition of Design in Design Act is as follows:

Section 2(d) in the Designs Act, 2000

(d) “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957);

ajay amitabh suman (ADVOCATE) 21 July 2017

It means Design does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958. So how a Shape Trade Mark can function as Design. As per scheme , dual protection is not possible for a shape of product , in Desgn Act and Trade Marks Act both.

Hilary Hilary 13 May 2022

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Shape as a trade mark and design

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