How colors affect the distinctiveness of a 3D bottle-shaped trademark?

Getting protection for three-dimensional (3D) trademarks—like the shape of a bottle, a box, or even unique packaging—isn’t always easy in the Philippines. The Intellectual Property Office of the Philippines (IPOPHL) carefully examines whether a shape can really function as a trademark, or if it’s just the normal look of the product.

A 3D mark has to be distinctive—it should help consumers immediately recognize the product’s source. But IPOPHL won’t allow protection if the shape:

1. Is simply the natural form of the product,
2. Is needed to make the product work, or
3. Is mainly there to make the product look attractive or valuable.

These rules are in line with international standards used by WIPO and other ASEAN countries.

Why Companies Push for 3D Marks

One big reason businesses apply for 3D marks instead of industrial design protection is how long the rights last. Industrial designs in the Philippines are protected for up to 25 years (renewed in 5-year blocks). Trademarks, on the other hand, can be renewed indefinitely, as long as the mark is used. That means a company can keep control over a unique shape or packaging for as long as it remains in business.

For example, think of the Coca-Cola contour bottle. Even without a label, people recognize it instantly. That’s what makes it work as a trademark. Locally, companies in the liquor and food industries have also tried to protect bottle shapes, arguing that the overall design—including the labels and color schemes—sets their products apart.

What IPOPHL Looks At

Shapes alone are often considered too plain. But if the product has a special color scheme, label placement, or decorative features, that can help. For instance, a copper-colored bottle neck, a distinctively shaped label, or a bold color combination could be enough to make the shape memorable for consumers.

This approach is similar to a case in Europe involving Absolut Vodka’s bottle. The authorities there first said the bottle was too ordinary, but on appeal, it was recognized as distinctive because of its overall design and copper elements. While that case was in the EU, IPOPHL examiners use the same type of reasoning when judging 3D trademarks here.

Philippine Examples and Case Law

In the Philippines, the courts have stressed that what matters most is the overall impression on consumers.

• In McDonald’s v. Big Mak (2004), the Supreme Court ruled that similarities in how products look and feel can confuse consumers, even if the names aren’t exactly the same. That principle applies to 3D marks too—if the shape and look of packaging point to a single source, it can be protected.
• In Kolin v. Kolin (2019), the Court emphasized the idea of secondary meaning. This happens when, over time, consumers begin to link a shape or packaging style with one brand only. Evidence of long use, advertising, and consumer recognition can tip the scales in favor of registration.

Don’t Forget Copyright

Sometimes, 3D product designs can also be protected under copyright law if they qualify as “works of applied art.” For example, if a bottle shape includes a creative design that goes beyond simple functionality, the designer may claim copyright protection. But unlike trademarks, copyright doesn’t require commercial use, and it won’t stop others from making similar functional shapes.

Final Thoughts

3D trademarks are tricky, but not impossible to secure in the Philippines. To improve the chances of approval, businesses should:

• Highlight the unique features of their product’s shape,
• Use distinctive colors or decorative elements,
• Show evidence of consumer recognition, and
• Consider a mix of protection—trademark, industrial design, and copyright—for maximum coverage.

If you want to lock in long-term rights to your product’s look, a 3D trademark with IPOPHL is worth pursuing.

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