A shape trade mark may comprise the shape of a product or an aspect of packaging. The shape must be capable of distinguishing the owner's goods or services from those of other traders.
A shape trade mark may acquire distinctiveness through use a prior to filing of an application. In order to support a shape trade mark application that has acquired distinctiveness, evidence of the acquired distinctiveness is able to be filed at the Trade Mark Office.
The triangular shape of “Toblerone” chocolate was accepted as a shape trade mark. It was seen that the shape qualified as an “added feature” rather than a functional feature.
Kraft Foods' Toblerone
Registration Number: 706788
Nestlé's Kit Kat
Application Number: 822779
Several parties opposed the Kit Kat application on the basis that the Kit Kat trade mark was solely a functional shape, merely being two bars joined together by a thin base. It was contended that the mark could not operate as a trade mark.
The examiner concluded that the evidence garnered high recognition as a functional shape rather than a shape that has acquired a capacity to distinguish.
On the other hand,