Shape mark

Shape mark: form of a drinking bottle lacks distinctiveness in relation to perfumes

Your contacts

A recent judgement of the Swiss Federal Administrative Court highlights the strict practice for the registration of shape marks. The court ruled that a 3D mark for perfumes cannot be entered in the trade mark register for perfumes in Class 3, since it shall belong to the public domain according to Art. 2 lit. a of the Swiss Trade Mark Protection Act (MSchG).

The Court says that the overall appearance of the cylindrical container, the short neck and the small cylindrical lid characterizes a large number of perfume bottles available on the Swiss market. The small cylindrical stopper and the square pendant, which is hung on a small loop at the end of the stopper, are also commonplace. The individual three-dimensional elements of the bottle were therefore regarded as banal. Since the trivial 3D elements are also not combined in a particularly original way, the Court held that there is an elementary sign within the meaning of Art. 2 lit. a MSchG.

The Federal Administrative Court subsequently acknowledged that a trivial 3D sign in itself does not belong to the public domain if it has distinctive two-dimensional elements on its surface, such as lettering, graphic elements or colours, which have a significant influence on the overall impression it creates. However, in the present case, the Court considered the graphic two-dimensional square embedded in the likewise square pendant as nothing other than an elementary form in another elementary form. It can therefore not help to give the sign in question distinctive character. The reflective, metallic surface was also judged to be free of any distinctive features, since there are many models whose surfaces are metallic and reflective.

According to the Federal Administrative Court, the sign in question thus belongs to the public domain within the meaning of Art. 2 lit. a MSchG. The complaint was therefore rejected and the decision of the Institute of Intellectual Property (IPI) was confirmed.

The procedure once again illustrates the very strict attitude towards shape marks in Switzerland. From this point of view, the decision is hardly surprising. Another question, however, is whether this practice is appropriate. In the present case, the question arises as to whether the shape of a drinking bottle may truly be qualified as a banal shape of a perfume bottle. The choice of an obviously unfamiliar form of packaging for a product – such as an outdoor drinking bottle for perfume, which is usually only hardly drinkable – should be sufficiently unusual to make it recognizable for the consumers and to give it a distinctive character.

Decision B-7547/2015 of November 30, 2017

Share post

most read


MLL Legal

MLL Legal is one of the leading law firms in Switzerland with offices in Zurich, Geneva, Zug, Lausanne, London and Madrid. We advise our clients in all areas of business law and stand out in particular for our first-class industry expertise in technical-innovative specialist areas, but also in regulated industries.

MLL Meyerlustenberger Lachenal Froriep


Much is still unclear in relation to liability questions around AI tools.

Read our latest post about “Liability during the Lifecycle of an AI Tool” and download our white paper.

Show article.

Our Story

MLL Legal is a leading Swiss law firm with a history that dates back to 1885. The firm has grown both organically and by means of strategic mergers, the latest of which took place on 1st July 2021 between Meyerlustenberger Lachenal and FRORIEP.

The merger establishes MLL Legal, a combined new entity as one of the largest commercial law firms in Switzerland with 150 lawyers in four offices in Switzerland and two offices abroad, in London and Madrid serving clients seeking Swiss law advice.

Our firm has a strong international profile and brings together recognised leadership and expertise in all areas of law affecting commerce today, with a focus on high-tech, innovative and regulated sectors. 

About us


Click here for our latest publications


Read all our legal updates on the impact of COVID-19 for businesses.

COVID-19 Information

Job openings

Looking for a new challenge?

Our talented and ambitious teams are motivated by a common vision to succeed. We value open and straightforward communication accross all levels of the organisation in a supportive working environment.

Job openings

Firm News

Click here for our latest firm news.

Our Team

The regulatory and technological landscape continually require businesses to adapt and evolve.
Our 150+ lawyers are continuously innovating and striving for improvement in everything they do. We embrace new ideas and technologies, combining our wealth of expertise with creative thinking and diligence. With our hands-on approach, we implement viable solutions for the most complex legal challenges.

Our Team.

LexCast – the podcast series by MLL NexGen

Smart legal education on the go. The LexCast hosted by MLL NexGen provides legal insights in a short format that allows listeners to educate themselves on and about legal issues wherever they are and whenever they find the time.

Listen to our podcast series – stay tuned.

MLL Legal on Social Media

Follow us on LinkedIn.