Shape Marks - Intellectual Property Office of Singapore

Shape marksApplying the principles as stated in the Yakult case, even if it is accepted that thecurrent sign is different to a degree which renders it visually distinguishable fromother such signs in use in the relevant market, the question to be determined iswhether it is distinctively different so as to be likely to be perceived and rememberedby the average consumer as a non verbal trade mark. In the current case, the sign,viewed either as a representation of the shape of the specified goods or theirpackaging is insufficiently arresting to impact upon people in that way in a sector ofthe market where reasonably well-informed, observant and circumspect consumerswould appreciate at a general level that variations of shape or of shape or colour incombination might or might not be consistent with the goods thus differentiatedcoming either from economically linked or from economically independentundertakings.(b) Where the goods have no shape (e.g. liquids)In relation to 3D marks consisting of the packaging of goods which are normallytraded in packaged form (such as liquids), it is necessary to assimilate the packagingto the shape of the goods, so that the packaging constitutes the shape of the goods forthe purposes of Section 7(3) and where appropriate assessment of whether thepackaging might describe the characteristics of the product, including its qualityunder Section 7(1)(c) (see Henkel KGaA v Deutsches Patent- und Markenamt (CaseC-218/01) where the mark in question is a coloured 3D mark of a liquid detergentbottle).Version 1 (13 January 2006) Page 22 Intellectual Property Office of Singapore