A comparison between three-dimensional marks and industrial drawings and designs

Before we begin to define the difference between three-dimensional [3D] trademarks and industrial drawings and designs in the light of Law 82/2002, we should first mention that 3D trademarks protect the shape of products and make them more distinguishable in the market from other products resulting from competition. Consequently, consumers can recognize a particular trademark product more easily and distinguish it with the naked eye from other trademarks that offer similar products on the market while industrial drawings and designs protect 3D forms that take a special appearance of novelty and are industrially applicable.

Although Part One of Book Two of Law 82/2002 pertaining to trademark registration did not expressly provide that 3D marks would not be registered, Article 63 of the said Law did not include 3D forms in the trademark classification. However, Article 119 of this Law in Part Two of Book Two clearly provides that the form must be a three-dimensional [3D], and must give a special appearance of novelty and be industrially applicable.

In this regard, we explain that the principle of novelty prevents the possibility of registering an industrial design or form that lacks the novelty requirement and that is why some companies try to register a form as a three-dimensional trademark. In addition, the maximum protection period of the industrial design is 15 years while the trademark protection period is infinite.

It is worth noting that the Trademark Department refuses to register 3D marks, whether they are presented locally or an extension of protection as trademarks. Even in discussing the matter before the appeal committee, the committee insists on rejecting the 3D marks. We attribute this refusal to their reliance on the judgment of the Egyptian Administrative Court issued on July 19, 1960 in the case No. 249/11 J in the lawsuit filed by Coca-Cola against the Egyptian Ministry of Trade in connection with the application to register the Coca-Cola bottle as a trademark of the well-known soft drinks. According to the judgment of the Administrative Court, “the mark can be a manufactured commodity, as in the containers and casings in which industrial products are packed as long as the packaging has a distinctive shape.” Opinion in jurisprudence has tended to distinguish between the special form that is distinctive as a trademark, however, the shape of the item itself may not be registered, no matter how unique it may be as a trademark, but rather be protected in accordance with the established rules for the protection of industrial designs.

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