Shape Marks in Benelux: The “Technical Function” Trap

Registering a 3D shape as a trademark in the Benelux is particularly difficult. One of the main reasons is a strict legal rule that excludes from protection any shape that is necessary to obtain a technical result.

This rule creates an absolute bar: if a shape is functional, it cannot be registered as a trademark—no matter how well known it is.

1. What is a shape mark in Benelux?

A shape mark (also called a 3D mark) is a trademark consisting of the shape of a product or its packaging.

Examples include:

• The shape of a bottle
• The shape of a container or pouch
• The shape of a product itself

In Benelux, shape marks are examined very strictly because trademark law must not be used to block competitors from using functional or technical product designs.

2. The “technical result” rule in Benelux

Under Benelux trademark law, a sign consisting exclusively of a shape is refused if the shape is:

• Necessary to obtain a technical result

This rule is designed to prevent trademark law from replacing patent protection. Technical solutions must remain available to all market participants once patent protection (if any) expires.

3. What does “necessary to obtain a technical result” mean?

A shape is considered necessary to obtain a technical result when its essential characteristics are chosen primarily for functional or technical reasons, rather than for branding.

Typical indicators include:

• The shape improves usability, stability, or efficiency
• The shape is dictated by how the product works
• Alternative shapes would not achieve the same technical effect

If the technical function explains why the shape looks the way it does, trademark protection is not available.

4. Famous example: functional packaging shapes

A well-known example often cited in discussions of shape marks is functional packaging designed to improve storage, handling, or consumption.

For instance, pouch shapes that:

• Allow the product to stand upright
• Facilitate squeezing or pouring
• Reduce material usage while maintaining strength

These features are typically considered technical solutions. Even if consumers recognize the shape, it cannot be monopolized through trademark law.

5. Why distinctiveness does not save a functional shape

In Benelux, the technical-function exclusion is an absolute refusal ground.

This means:

• You cannot rely on acquired distinctiveness
• You cannot argue consumer recognition
• You cannot register the shape even if it is famous

Unlike descriptive word marks, functional shapes can never be cured through use, reputation, or marketing investment.

6. Why adding branding elements does not help

Applicants sometimes attempt to register a shape by arguing that branding, labels, or logos appear on the product.

However, Benelux examiners assess whether the shape itself is functional. If the essential characteristics of the shape are dictated by technical considerations, the presence of branding does not change the analysis.

The question is not whether the product carries a brand, but whether the shape alone is eligible for trademark protection.

7. Common mistakes when filing shape marks

Frequent errors include:

• Confusing trademark protection with patent or design protection
• Assuming consumer recognition can overcome functionality
• Ignoring technical advantages of the shape
• Filing a shape mark without considering alternative IP strategies

These mistakes often lead to refusal and unnecessary costs.

8. What protection options exist instead?

When a product shape is functional, other forms of intellectual property may be more appropriate, such as:

• Design rights (for aesthetic aspects)
• Patents (for technical innovations, if applicable)
• Word or logo trademarks used on the product or packaging

Trademark law is not intended to protect technical solutions.

9. Practical implications for Benelux filings

Before filing a shape mark in Benelux, it is critical to assess:

• Whether the shape provides a technical or functional advantage
• Whether the essential features are dictated by utility
• Whether alternative IP protection is more suitable

In many cases, filing a shape mark without this analysis leads to predictable refusal.

10. Key takeaway

Benelux applies a strict rule against registering shapes that are necessary to obtain a technical result.

If a shape is functional:

• It cannot be registered as a trademark
• It cannot acquire distinctiveness through use
• It is permanently excluded from trademark protection

For shape-based products, trademark protection should focus on names, logos, and branding, not on technical product shapes.