Marks are one of the most distinguished business tools in the global market's economy, extending, all over the world, as a result of new inventions, new markets or even new legal forms such as the Franchise or Licenses.
The purpose of a brand is to identify a product or service and to make it distinguishable from similar products on the market. Hence, it becomes an essential asset to attract and maintain clients.
The brand becomes a fundamental matter in a company profitability, in fact, being identified by one, helps them be recognized in the market as reliable companies. These branding practices have led to the development of three-dimensional trademarks which have raised a challenge in the legal field, for there is a need to provide protection for wrappings, packages and containers.
The first marks that received a recognition from the legislative authorities in the 19th century were the named, figurative and mixed trademarks, or those consisting in a word or a combination of words. At that time, the inherent characteristics that customized a product or service as a mark couldn't be used, such as its three dimensional form (width and depth), for it was considered those details lacked of certain distinctiveness.
Consequently, a first definition for the three-dimensional mark is acknowledged as a brand composed by the particular or arbitrary form of its package, in other words, they acknowledged it was a body with a known volume that occupies the three dimensions of space (height , width and depth); For example, The INDECOPI Court defines a three-dimensional mark as one composed by the particular form of its container, packaging and other fittings.
This definition allows us to understand the importance and convenience of the protection of 3-D trademarks. The first marks that attained to be recognized as such, were the ones of products or containers, such as the Coca Cola bottle. Over time, the three-dimensional marks evolved along with their products or services, and the concept that used to protect them needed to change as well.
With new competitors in the market, the brands saw the need to evolve and adapt according to their client's needs, which have become more demanding over the years. The 3-D marks, as well, saw this need to evolve, example of this is the three-pointed star in the Mercedes Benz cars, which has also become one of their greatest assets. This protection has even extended to restaurants shapes, such as the Freddie Fuddruckers food chain. These, and plenty of others have demonstrated the importance the 3D Trademarks have attained.
On the Andean Community Countries, it is defined that “The businessman must distinguish the product offered to their clients by a three-dimensional trademark that allows it to be different from others similar in the market. These standards (found in section b) and c) from the Article 82, Decision 344) are applied as well to services.”
Now, regarding this trademark registration, we must take into consideration that there are three main requirements that they must fulfill. The first one is distinctiveness (intrinsic and extrinsic). The second one is it must possess a shape that is unusual for the product or service being offered, and third, this shape must not contain any technical nor functional advantage for the product, for this is not the purpose of three-dimensional marks.
In the vast majority of the current legal frameworks, the three dimensional trademarks are regulated for every type of product or service. There are, as well, International Treaties that allow the registration process to be unified with the three-dimensional brands, and this becomes a benefit to the holder or businessman.