2-D bottle drawing is registrable, but 3-D is not

In Coca-Cola Company v Department of Intellectual Property (Case TorPor 66/2547, June 17 2004), the Supreme Court has allowed the registration of a sign depicting the shape of a bottle as a trademark for beverages on the grounds that the two-dimensional drawing was sufficiently distinctive. This overturned a Trademark Board decision that held that the sign was prohibited from registration as it was a container and thus not a trademark within the meaning of the Trademark Act.

Coca-Cola Company filed a trademark application with the trademark registrar to register a two-dimensional bottle device as a trademark for various non-alcoholic beverages and products in Class 32 of the Nice Classification.

The trademark registrar rejected Coca-Cola's application on the grounds that:

• the sign is a container for the product and not a 'trademark' as defined by Section 4 of the Trademark Act - that is, a sign used or proposed to be used on or in connection with goods to distinguish them from other goods;
  
  
• the sign is a general picture that is not distinctive under Section 7 as it would not enable the public or users to distinguish the goods on which the trademark is used from other goods; and
  
  
• a mark that is not distinctive is prohibited from registration under Section 6.

Coca-Cola appealed but the Trademark Board upheld the registrar's decision on the same grounds. Coca-Cola appealed to the Supreme Court.

The Supreme Court reversed the decision. It held that as the mark appeared in two dimensions it should be considered a device mark and not a container shape. The court also found that the device mark was sufficiently distinctive to warrant registration.

Chalinee Panthuvichien, Johnson Stokes & Master, Bangkok