Shape trade marks in Australia
A shape trade mark protects a three-dimensional shape that identifies your brand. It is powerful when available, but difficult where the shape is functional or common.
What is a shape trade mark?
A shape trade mark protects a three-dimensional shape used to distinguish your goods or services. It might be the shape of a product, container, bottle, package, or another physical brand feature.
Shape marks are different from design rights. Design rights focus on the visual appearance of a new product design. A shape trade mark focuses on whether the shape operates as a brand identifier.
Examples
- A distinctive bottle shape that customers recognise even without the label
- A distinctive chocolate, confectionery, or food product shape used consistently as a brand cue
- A packaging shape that has become strongly associated with one trader
When to use a shape trade mark
The shape identifies the brand
A shape filing makes sense where customers see the shape and think of your business, not just the product category.
The product has long-term packaging equity
If you invest heavily in a distinctive container or packaging silhouette, trade mark protection can support enforcement after design rights have been considered.
The shape is not functional
Shapes that are necessary for the product to work, or are common in the market, are much harder to register and enforce.
How to register a shape trade mark
Capture the shape clearly
A shape application needs a clear representation of the three-dimensional shape. Multiple views may be needed so the scope is clear.
Assess distinctiveness
We consider whether the shape is unusual in the market, whether competitors need to use similar shapes, and whether use evidence may be needed.
Choose goods and services
Shape marks usually focus on the product category where the shape is used. Overly broad filings can create unnecessary examination problems.
File with supporting detail
The application must clearly identify the mark as a shape mark. If IP Australia raises a distinctiveness objection, evidence or argument may be required.
Common pitfalls
Trying to protect a functional shape
If the shape is dictated by how the product works, it is unlikely to function as a trade mark. Trade marks are not a back door for product functionality protection.
Confusing design rights and trade marks
A registered design and a shape trade mark protect different things. For new product designs, design rights should be considered early because timing matters.
No evidence customers recognise the shape
For many shape marks, especially simple product or packaging shapes, evidence of market recognition can be important.
Filing too early without strategy
If the shape is not inherently distinctive, a premature filing can attract an objection. It is worth planning the evidence and broader IP strategy first.
Cost and timeline
Filing a shape trade mark costs the same as any standard trade mark application. Our online filing tool starts from $799 for one class, including government fees and GST, with additional classes at $689 each. For complex situations, our lawyer-led service provides a fixed-fee quote. The process typically takes 7 to 8 months from filing to registration if no objections or oppositions arise.
See pricing and what's includedFrequently asked questions
Can I trade mark a product shape?
Is a shape trade mark the same as a registered design?
How much does it cost to register a shape trade mark?
Do I need evidence to register a shape mark?
Can I trade mark packaging shape?
Ready to protect your shape mark?
Register your trade mark online in minutes with fixed-fee pricing, or speak to one of our specialists.