A three-dimensional mark in China’s trademark laws is a trademark symbol that is entirely three-dimensional or has a three-dimensional component Common examples of three-dimensional marks include the shape of a product in itself or its packaging. Trademark application submissions should include a declaration of any three-dimensional mark requests. Otherwise, only a two-dimensional trademark will be granted.
Cases in China
Nestlé stirred controversy in China by registering three-dimensional marks in conflict with soy sauce packagers. Nestlé’s three-dimensional packaging trademark registration resembled the square, brown packaging traditionally associated with Chinese soy sauce packages and was thus accused of using its three-dimensional mark as a weapon to attack the Chinese soy sauce industry. The Nestlé case was the first of its kind in China and therefore became a seminal case in Chinese law.
Nestlé later issued a cease and desist letter to three soy sauce makers in 2008 and subsequently filed a complaint with the business regulator alleging trademark infringement. Nestlé alleged that the soy sauce makers’ products infringed on its trade dress, as registered in a three-dimensional patent, and petitioned for an injunction to cease the soy sauce makers’ use of the packaging design.
In addition to the three named defendants, there were 28 other soy sauce makers using similar brown square bottle trade dress. The Nestlé case was ultimately filed as a lawsuit in Guangzhou, which Nestlé lost. On appeal, the appellate court also denied Nestlé’s trademark. The court reasoned that, although the three-dimensional trademarked packaging might have distinctiveness throughout international markets, it lacked distinctiveness in Guangzhou due to the long history and ubiquity of the brown and square bottling, which is universally well-known among consumers, who likewise were not as familiar with the Nestlé packaging.
FURTHER READING