Our associate Andrea Miño publishes in WTR Daily (World Trademark Review) an article on ‘Distinctiveness of three-dimensional trademarks’ in which she analyzes how the Ecuadorian Office is conducting the examination based on the rules established by the Court of Justice of the Andean Community.
She recalls that according to the court, “3D marks should not be (i) a typical or common form used by competitors on the market, or (ii) a necessary form that meets the functionality requirements for the protected goods. As a result, 3D marks must exhibit intrinsic distinctiveness”.
Likewise, “the court emphasised that 3D marks must, by themselves, allow consumers to associate the protected goods with a particular corporate origin; therefore, they must have arbitrary shapes or display lines, strokes and/or reliefs creating a distinct impression that allows the goods to be differentiated from others sold on the market”.
In this context, she states, “the Ecuadorian IP Office has recently applied the guidelines established by the Andean Court, and denied or annulled rights pertaining to 3D marks. These decisions were made because the marks did not meet the necessary requirements for registration, and protection was pursued through additional elements making up the marks”.
For example, these criteria were the basis for the rejection of a 3D mark for the “Zafiro Chaide mattress and base design” because it did not comply with the necessary requirements; the distinctiveness of the mark, according to the applicant, arose from the designs, colours and words that made up the mark.
If you want to read the full article, click here.
This article first appeared in WTR Daily, part of World Trademark Review, in (August/2023). For further information, please go to www.worldtrademarkreview.com.