The registration and protection of 3D marks in China
Three-dimensional trademarks belong to a category of non-traditional trademarks, and the term non-traditional trademark was first proposed in the Singapore Treaty on the Law of Trademarks (STLT) to refer to trademark types other than traditional textual and graphic trademarks.
Three-dimensional trademarks, especially those composed of the shapes of the products or packages or containers, are usually considered non-distinctive. This is because these shape marks are likely to be taken as the products themselves, rather than as trademarks.
Public identification is key
In a final judgment issued by the Beijing High Court on an appeal to review the refusal of a three-dimensional trademark used on shoes and boots (as shown below) the court ruled against the applicant.
It rejected the trademark application on the grounds that the trademark, which is composed of yellow stitching around the edge of the shoe upper, is not an essential component of footwear products.
The court also found that the mark’s proportion of the footwear product is relatively small, meaning that it is unlikely to catch the attention of the relevant public.
In other words, the yellow stitching around the edge of the shoe upper is not likely to be identified by the relevant public as a trademark. Thus, this trademark was rejected for registration for its lack of distinctive character.
