Protecting 3D marks in Israel: a grey area

According to the Trademark Ordinance, a trademark may be either two or threedimensional. In practice, though it is possible to apply for three-dimensional trademarks, Patent Office Circular MN 61 curtails the registrability of such marks. Specifi cally, three-dimensional trademarks that depict just the goods that are intended to be covered by the mark are deemed to be not inherently distinctive.

Essentially, the position of the Israel Patent and Trademark Office is that the appearance of the good is not an indication of its source. Rather, it is by nature generic. The patent office believes that the most fitting way to protect the shape and appearance of three-dimensional objects is by means of industrial designs.

However, since designs can provide protection for a maximum of 15 years, whereas a trademark may be renewed indefinitely, there is a great deal of interest in protecting the appearance of a good using trademarks.

Currently, it may be possible to register the shape of a good as a trademark in special cases, where evidence is provided to demonstrate that three cumulative conditions are fulfilled: