Psychology, Prototypicality and Basic Shapes

Publication details

Ilanah Fhima, 'Psychology, Prototypicality and Basic Shapes: the "Shape Resulting from the Nature of the Goods" Exclusion under EU Trade Mark Law' in H Bosher and E Rosati (eds), Developments and Directions in Intellectual Property Law: 20 Years of The IPKat (Oxford University Press: 2023)

Abstract

This chapter re-visits the CJEU’s interpretation of EU trade mark law’s ‘natural shape’ exclusion (a.k.a. ‘the first indent’) in the Hauck decision of 2014. The Court held that ‘a shape with essential characteristics which are inherent to the generic function or functions of such goods’ must not be registered as a mark. The CJEU’s introduction of the ‘generic functions’ terminology as a term of art without adequate explanation has puzzled trade mark scholars ever since. The chapter argues that the CJEU’s judgment in Hauck must be read alongside the corresponding Advocate General’s opinion. In combination, these reveal that the first indent aims to prevent registration of ‘basic’ shapes which must be ‘kept free’ in the interest of maintaining a competitive market. However, neither really helps to identify what these basic shapes are. While the approach taken by the CJEU is obscure, the chapter argues that it finds support in the psychological psycho-aesthetic literature. Here, ‘basic’ or ‘prototypical’ product shapes are recognised as those which are valuable in reducing information retrieval costs, and also those consumers find particularly attractive. The chapter concludes that while the CJEU’s first attempt at blocking the registration of basic shapes in Hauck is not a model of clarity, the concept is one worth persevering with and developing, given its recognised real-world value and significance.

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