The Protection of (Three-Dimensional) Shape Trademarks and Its Implications for the Protection of Competition

The exclusive protection of shapes (three-dimensional in particular) as trademarks of products, raises serious concerns about its possible negative impact on competition. The analysis of the European legal framework focuses on the risk of systemic impasse and over-protectionist consequences resulting from the coexistence of trademark and registered design protection. An interpretative solution capable of overcoming such impasse in a pro-competitive perspective is presented. Such solution is then confronted with the alleged “investment function” of trademarks as asserted by the CJEU—an assertion criticized as both systemically improper and deeply anti-competitive. The solution is finally reconciled with the need to avoid weakening the distinctive character of the overall appearance (“trade dress”) of industrial products