A refusal by IPONZ to register the shape trade mark shown below has been upheld by the Assistant Commissioner in Noms De Code Societe Par Actions Simpliefiee’s Appln  NZIPOTM 16.
The application was filed in class 3 for goods including “perfumes” and was accompanied by the explanation “the mark consists of a three-dimensional shape of a bottle, as shown in the representation attached to the application”.
The Assistant Commissioner concluded that the whole of the mark lacked the inherent distinctiveness required for prima facie registration, because:
- It consists largely of a rectangular bottle, which other traders are likely to wish to use;
- Other traders were also likely to wish to use features such as a similarly shaped cap or similar forms of decoration around their bottles; and
- The scope of the application was broad; the application only provided two perspectives of the mark, it was not limited to colour, size or materials, all increasing the likelihood of other traders being caught by the proposed registration of the mark.
The Assistant Commissioner’s approach is in line with the current practice at IPONZ. It is notoriously difficult to register bottle shapes as trade marks without either evidence of use or a high degree of stylisation contained within the mark. However, it would be interesting to know whether the outcome in this case would have been different had the explanation of the trade mark further limited the mark in terms of colour, size and material composition.