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A close shave on functionality

Packaging companies wanting to patent a pack on the basis of its function will be disappointed now that the European Court of Justice has clarified that, if a shape is dictated by a function, it is excluded from a trademark even if there are other shapes available.

The explanation under section 3.2 of the European Trademarks Directive was made for the Philips versus Remington case where Remington is arguing that the Philips’ three-headed shaver should not be patented as the product uses the most optimal engineering design, making any claim for exclusivity unreasonable.

The Court of Appeal will hear this case under the guidelines which will set a new precedent.