What is 3D Packaging Under Trademark Law?- Comprehensive Analysis

3D Packaging under trademark Law
Siddharth Verma
| Updated: Nov 15, 2021 | Category: Trademark

Meaning of Trademark incorporated under section 2(1)(m) of trademarks act, 1999 which defines mark as one which contains a brand, device, label, heading, name, signature, ticket, letter, numeral, word, packaging, the shape of the goods or combination. This concept has been expanded to encompass non-traditional trademarks such as three-dimensional trademarks. In India, 3D packaging under trademark Law can now be easily trademarked. Nowadays, primarily the Non-conventional Trademark uses 3D packaging for products; for Example of 3D Trademark is the packaging of Toblerone chocolate. 3D packaging of Trademark is different from other competitors products in the market those using conventional type of 2D packing. Scroll down to check more about 3D packaging under Trademark Law:

What is a 3D Trademark? 

 3D Trademark is a Non-conventional Trademark. It is the 3D Trademark because it does not have a 2D component like numbers, words, and figures. 

Three conditions prevent a trademark from being qualified as a registered 3D trademark:

  1. Where the nature of the items determines the form of commodities.
  2. When the structure of the items necessitates the attainment of a technical outcome.
  3. Where the things are accorded a significant value because of their form.

How can you protect your 3D packaging under Trademark Law in India

According to section 2(1)(zg), a well-known trademark is a mark in respect of goods or services that has become well-known to a significant segment of the public which uses such goods or receives such services. Substantially a mark is determined by the fact that if any marketer uses that mark to their goods or services, the public is likely to interpret that mark as indicative of a connection in continuation of trade or service, in addition to a person using the mark to the first-mentioned goods or services. Along with fulfilling the requirements under Section 2(1)(ZB), the manual of Trademarks, Practice, and Procedure is available to assist applicants by listing the requirements of graphical representation that must be adhered to by the applicant in cases of unconventional trademarks such as smell marks, sound marks, color marks, and so on as:

  1. A trademark must be able to be graphically depicted to be registered.
  2. A short and accurate Trademark description should accompany a color, form, or packaging trademark.

A description would be added as an endorsement, which, combined with the graphical representation, would aid in defining the scope of the registration. It should also be emphasized that the applicant is responsible for providing a good depiction of the Trademark. For Example, Coca-Cola bottle shape, the graphical representation of the shape should be in the form of a perspective sketch, exhibiting all characteristics and an accurate description of the shape. 

Case Study related to 3D Packaging Under Trademark Law

  • Ferrero Spa vs M/s Ruchi International: 

In the matter of Ferrero Spa vs M/s Ruchi International Ruchi International, the First Defendant, was an importer and marketer of chocolates in India under the brand name ‘Golden Passion.’ These chocolates resembled the plaintiff’s FERRERO ROCHER chocolates, which were sold under the FERRERO ROCHER mark. Even after an injunction was issued against the defendants, the manufacture of these chocolates in India continues, and defendant no.2 exports them from China under the trademark “Golden Passion.”

Judgment 

The Court ruled that the resemblance in packaging between the Defendant’s goods and the plaintiff’s product infringed on the plaintiff’s rights under Section 29(5) of the Trademark Act. The Court decided to provide trade dress protection in addition to well-known trademark protection under Sections 2(1)(zg) and 11(6) of the Act. As a result of this decision, Ferrero Rocher now has a 3D trademark over the packaging of its goods in India.

  • Position in Singapore concerning Ferrero Rocher in Terms of Trademark Protection

Ferrero Rocher items have been available for quite some time. The products have a large client base because they have a distinct taste and attractive appearance. While considering whether to grant trademark protection to Ferrero Rocher packaging, the implications of accepting “mere identification of a product” for registration were once again emphasized. It was further determined that the applicants failed to explain or establish a vital point: whether the ordinary consumer would regard any or all packaging components as unique if the different word mark ‘FERRERO ROCHER were not on the goods. Ferrero Rocher did not get the Trademark because of this unresolved question.

3D Trademark application Tips by Experts

    Following are the Tips:

  1. The search is rather time-consuming since searching for a product is more complex than searching for a Word and mark, for example. It is essential to analyze the product’s categorization or group of products and services to be protected.
  2. The consistency of the graphics is necessary in this case. The product to be safeguarded should be visible from all angles and against a neutral background. It should be noted that it should appear in the same state in each image.
  3. The patent application, which merely protects the concept, is an alternative protection version. It would also be a good idea to register your design as a trademark. A design application is more straightforward than a 3D trademark application since no origin function is required. 
  4. Despite patent applications, for example, trademark applications are submitted quickly: Your 3D Trademark will be registered in less than six months in the shortest condition, i.e., the earliest feasible proper transfer, the use of the online application, and the request for accelerated inspection.

Conclusion

We conclude here that 3D Packaging under Trademark law provides enough protection for 3D packaging; one may also protect the shape of items under the Design Act of 2000[1], which applies to both 2D and 3D shapes. On its basis, trademark law operates as a consumer protection tool, eliminating consumer confusion and making it easier for consumers to obtain the goods and services they desire. In assigning a trademark to 3D forms or packaging, courts and trademark registries should attempt to balance the interests of the applicant merchants seeking trademark protection with many other traders who may use or are using aspects of such trademarks in good faith.

Read our Article:What is the Significance of Trademark in Branding?

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Siddharth Verma

Siddharth has completed his graduation in law (BA. LLB) from Guru Gobind Singh Indraprastha University. He has a keen interest in doing extensive research and writing on legal subjects, especially on Civil, criminal and corporate Law. He is a creative thinker and has a great interest in exploring legal subjects.

 

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