3D Trademarks - Possible in China

January 12, 2009

Copying is a form of flattery - or is it theft? Larry Lessig's recent book, Remix, argues that copyright and other intellectual property law, if taken to an extreme, can be harmful to society. And yet, to a business that invests enormous sums in developing a distinctive product, being ripped off by pirates is not nice, and can be downright destructive.

So, when a goods producer creates a unique shape or design of an object, can it protect this from copying by others? 3D designs are possible in most countries. The Coca Cola bottle or the shape of wrapped chocolates (Ferrero) or lighters (Zippo) can earn trademark protection. But will that work in China?

Contrast two examples. Automobile makers spend fortunes developing new designs and looks for their cars. Many auto features are functional and common and should not become trademarked monopolies. Others are so distinctive (what boomer guy doesn’t know what the '57 T-bird looks like?) that rank copying might be considered a rip-off by most people.

China's State Administration of Industry and Commerce (SAIC) has weighed in on the issue of 3D trademarks. For automobiles, SAIC is fearful that registering 3D designs for cars would jeopardize the development of the Chinese car industry and hamper competition for all makers. For this reason, SAIC has said "So far, no automobile appearance can be registered as a 3D trademark in China."

By contrast, Zippo has registered its distinctive lighter design as a 3D trademark in China, and after a court battle, Ferrero gained a 3D trademark for its distinctive foil-wrapped design for chocolates. Click here to view our MULTILAW colleague's article on this victory and the general concept of 3D trademarks in China.

For a product owner of a distinctive looking item (the good itself, its container, its packaging), a 3D trademark is a possibility in China, well worth considering. Otherwise, China's fast-growing consumer market could be in jeopardy for companies whose basic value is in the distinctiveness of its products' designs and shapes.