As known, 3d trademark are an issue in many countries around the world. In Israel, in 2008 a precedent was set by the court (Civil Appeal 11487/03, August Storck KG vs. Alfa Intuit Food Products LTD, published 23.3.2008). in this precedent, the Supreme Court held that the shape of Toffiffee toffee snack could be registered as a design.
Since then, several rulings were made both by the courts and by the Israel Patent Authority led to a new circular published on March 2015 by the Israel Patent Authority.
Circular 032/2015 was issued in order to clarify which three dimensional packaging or product shapes could and should be protected with trademark registration and which with design registrations.
The circular itself is quite short and to the point, two of its main points are:
1. that the right path for protecting 3d designs of packaging or product shapes is by applying for a design registration; and
2. Inherent distinctiveness is insufficient grounds for trademark registration.
With those two main points in mind, the Israel Patent Authority circular state that registration of 3d trademarks will be allowed if three terms are met:
1. The 3d design actually serves as a trademark;
2. The 3d design is not mainly or significantly aesthetic or functional; and
3. The 3d design acquired a secondary meaning, i.e. acquired distinctiveness through use.
The circular unnecessary note that since trademarks registrations does not provide protection to each of the separate elements of a composite mark, consideration of the above mentioned terms may be waived if the composite mark allows the identification of source of the goods or services, such as the company’s main trademark or company name.
In addition, 3d trademark will be marked as 3d trademarks.