A jar of Speculoos: can packaging be a trademark?
Imagine a cookie butter spread with spices such as cinnamon and nutmeg.
Sounds great? Lotus Bakeries, known for its ‘Speculoos’ spread and Biscoff biscuits, is a favorite among snack enthusiasts for a reason.
Recently, we saw an interesting European trademark application from the company for the packaging design below:
Lotus Bakeries is clearly intent on securing exclusivity over this specific shape and color combination for its biscuits and cookie butter. The company has made several attempts in the past to register both labels and shapes, including their red-and-white label. However, most of these applications have been rejected due to a lack of distinctiveness.
The registration of shapes (with or without decorative elements) as trademarks has been a hot topic for years and case law in this area continues to evolve. Generally, the requirements for shape trademarks are stringent. For instance, a shape cannot be registered if it is purely functional or adds substantial value to the product itself. The latter rule means that if consumers purchase a product primarily because of its attractive shape, the shape cannot qualify as a trademark. Furthermore, in order to establish distinctiveness, a shape mark must significantly differ from common designs in the industry.
The rationale behind these strict criteria lies in the principle that the protection of shapes is primarily the domain of design and copyright law, rather than trademark law. Design and copyright protections are time-limited, whereas trademarks can be renewed indefinitely. This distinction explains the legislator's cautious approach to granting trademark protection for shapes.
Over the years, numerous well-known shape mark applications have been denied, including those for the Rubik’s Cube, the Kit Kat bar and Jaguar Land Rover’s vehicle designs. So, how does Lotus Bakeries’ application for this packaging design fare?
A red-and-white cylindrical shape may not immediately stand out from other packaging in the industry, but the golden color and ribbed texture catch the eye and make it distinctive. Lotus Bakeries secures a victory: the shape trademark has been accepted!
Author: Matthias Van Den Broek
Bio: Matthias van den Broek is a trademark attorney and specialist in advising in online brand protection and domain name disputes. His client portfolio includes well-known names in the financial sector, ranging from crypto startups to market makers. Matthias enjoys writing about current intellectual property issues, with an affinity for design law.