Prolegomenon to the three-dimensional trademark as a legal challenge to traditional trademarks

Abstract

A three-dimensional trademark consists of the shape of the products, their containers or packaging, or other receptacles. It is governed by Andean Community Decision 486, Legislative Decree 1075, and the latter’s implementing regulations (Supreme Decree No. 059-2017-PCM). Its legal framework comprises three constituent elements: corporeality, an unusual shape, and intrinsic distinctiveness; it requires that the consumer associate the shape of the product or its packaging with a specific business origin, without the need for additional word or figurative elements. Examples include the Coca-Cola bottle and the D’Onofrio cart, which are, in themselves, three-dimensional trademarks. A three-dimensional trademark does not function merely as a label; in this sense, it has a hybrid nature, as the physical medium and the distinctive sign merge into a single unit. They are registered with INDECOPI in accordance with the classification established by the Nice Agreement. The three-dimensional trademark represents a paradigm shift in trademark law, posing a challenge for the protection of intangible business assets.