Trade dress in the EU does not exist as a separate legal institution. The term originates in US law (§43(a) of the Lanham Act) and does not appear in Regulation (EU) 2017/1001 (EUTMR). The function that trade dress performs in the United States is distributed across several regimes in the European Union: non-traditional trade marks, EU designs, and — where necessary — national rules on unfair competition; copyright may also be relevant in some cases. In the US the conditions for protection are not uniform either: product design itself requires acquired secondary meaning, while certain types of packaging may have inherent distinctiveness from the outset. The EU logic is different, and understanding it is essential before filing an application.
Why the US Concept Does Not Translate Directly into the EUTMR
Article 4 EUTMR defines an EU trade mark as any sign capable of distinguishing the goods or services of one undertaking from those of others and of being represented in the Register in a manner that enables the competent authorities and the public to determine the subject matter of protection clearly and precisely. This is not a requirement of graphic representation — that requirement existed before the 2017 reform and has since been abolished. What matters is clarity and precision of representation as such: a shape, colour, or pattern may be filed in a format that unambiguously fixes the boundaries of protection, without being tied to any specific technical method of display.
A direct transposition of trade dress as a legal term therefore creates a false impression of a single unified instrument where several separate regimes with their own criteria actually operate.
What Performs the Function of Trade Dress in the EU
EUIPO recognises several categories of non-traditional marks that together cover the same practical need:
- Three-dimensional marks (3D / shape marks) — the shape of a product or its packaging as a standalone sign.
- Position marks — an element in a specific, fixed location on the product; the parts of the sign that are not subject to protection are typically shown in dotted lines, and a textual description of the position is not mandatory.
- Pattern marks — a regularly repeating design on the surface of a product or packaging.
- Colour marks — a single colour or combination of colours without contours, with a mandatory reference to a recognised colour code.
The representation requirements for these categories flow primarily from the Implementing Regulation and EUIPO practice, rather than from the Common Communication on New Types of Marks (CP11) — that document concerns mainly the newer categories harmonised between EU offices after 2018: sound, motion, multimedia, and hologram marks.
The Three Traps of Article 7(1)(e) EUTMR for Product Shape
Article 7(1)(e) EUTMR excludes from registration signs consisting exclusively of:
- the shape or other characteristic resulting from the nature of the goods themselves;
- the shape or other characteristic necessary to obtain a technical result;
- the shape or other characteristic which gives substantial value to the goods.
This is an absolute ground for refusal of a special kind. Article 7(3) EUTMR, which allows the absence of distinctive character to be overcome by evidence of acquired distinctiveness through use, expressly applies only to grounds under Article 7(1)(b), (c), and (d) — not Article 7(1)(e). This means that where a shape falls within any of the three exclusions above, registration is impossible regardless of how well known the brand is or how much recognition evidence has been gathered.
A telling example is Empreinte v EUIPO (T-437/25, General Court judgment of 25 February 2026): an application for a 3D mark of a corkscrew handle ergonomically shaped to fit the fingers of the hand was refused under Article 7(1)(e)(ii). The Court held that the essential characteristics of the shape, including the ergonomic handle, performed a technical function — they facilitated gripping and cork extraction. The fact that the shape was unusual and differed from typical solutions did not change that conclusion: under Article 7(1)(e)(ii) it is sufficient for the essential characteristics of the sign to perform a technical function, even if the shape is visually different from industry standards.
What the Case Law of the Court of Justice of the EU Shows
KitKat. In Nestlé v Mondelez (Joined Cases C-84/17 P, C-85/17 P, C-95/17 P, judgment of 25 July 2018), Nestlé provided evidence accepted as sufficient for ten of the fifteen member states then covered by the dispute — and that was not enough. The Court proceeded on the basis that acquired distinctive character must be established across the entire part of the EU territory where the sign initially lacked it. A separate piece of evidence for each individual member state is not required: a single body of evidence may in certain circumstances demonstrate acquired distinctive character for several markets simultaneously — for example, where they are served by a single distribution network. However, a gap even in one part of the relevant EU territory may be sufficient to prevent acquired distinctiveness from being considered proved across the entire territory required — and it was precisely this problem that arose in the Nestlé case.
Lindt Goldhase. In Case C-98/11 P (judgment of 24 May 2012), the Court refused registration of a 3D mark consisting of a chocolate rabbit in gold foil with a red ribbon: the shape, colour scheme, and ribbon did not deviate sufficiently from solutions common in the confectionery sector for the average consumer to perceive them as indicating a specific manufacturer.
Provided the sign does not fall within any of the three exclusions under Article 7(1)(e), the absence of inherent distinctive character may be overcome by evidence of acquired distinctiveness through use. A product shape may therefore be registered as an EU trade mark either where it differs substantially from industry norms from the outset, or where the applicant is prepared to compile evidence of acquired distinctive character across the entire relevant territory of the Union — and in both cases only where the shape does not fall within Article 7(1)(e) EUTMR at all.
The Second Layer of Protection: EU Design
Where the shape or appearance of a product is unsuitable for protection as a trade mark, or where the brand has not yet acquired the required level of recognition, protection through an EU design should be assessed separately. From 1 July 2026, this field is governed by the codified Regulation (EU) 2026/715 on European Union designs, which replaced Regulation (EC) No 6/2002; the terminology shifted from "Community design" to "EU design" earlier, on 1 May 2025.
A design protects the appearance of a product — its lines, contours, colours, shape, texture, and materials, and following the reform also the movement, transition, and other animation of those features. For protection, a design must be new and have individual character: it must produce a different overall impression on the informed user compared with designs previously disclosed. The scope of protection of a registered design operates in reverse after registration: it extends to any design that does not produce a different overall impression from the registered one. As with trade marks, features dictated entirely by the technical function of the product are excluded from design protection — so a design is not a universal fallback for a shape refused under Article 7(1)(e)(ii) EUTMR precisely on grounds of functionality.
A registered EU design is valid for five years from the filing date, renewable every five years up to a maximum of 25 years. An unregistered EU design arises automatically from the moment of first disclosure within the Union and lasts only three years — but the scope of protection is narrower: only copying constitutes infringement of an unregistered design, and independent creation of a similar solution by another manufacturer is not an infringement. A registered design has a broader scope not limited to literal copying — it extends to any design that does not produce a different overall impression.
The safest strategy is to file for registration before the design is publicly disclosed. Where disclosure has already occurred by the designer or their successor in title, a twelve-month grace period applies in defined circumstances, during which such disclosure does not destroy novelty. In parallel, where a sign lacks inherent distinctive character but may potentially acquire it through use, evidence of such use should be preserved for a future application for a 3D or position mark.
When National Law Comes Into Play
A registered EU design and an EU trade mark are not limited to literal reproduction of elements — both regimes cover non-literal similarity: the design through the "different overall impression" test, and the mark through likelihood of confusion and the reputation protection of well-known signs. There are situations, however, that neither unitary regime covers directly — for example, where a competitor reproduces the general manner of product presentation in a way that misleads consumers without formally infringing any registered right. This is where national unfair competition law comes into play. Unlike the EUTM and EU design, it is not harmonised: the criteria for protection, remedies, and jurisdictional rules depend on the law of the specific member state, making the strategy for enforcement here less predictable than within the unitary rights framework.
Practical Sequence of Steps
When assessing whether the appearance of a specific product can be protected in the EU, the following checks should be carried out in sequence.
Check the shape against the three exclusions under Article 7(1)(e) EUTMR : if it is dictated by the nature of the goods, a technical function, or gives the goods substantial value, the trade mark route is closed regardless of any further steps. Assess how far the shape or appearance deviates from typical solutions in the sector: a minor deviation means a high risk of refusal for lack of distinctive character. If the shape is new but has not yet acquired market recognition, file for an EU design before public disclosure: after registration, protection does not require proof of distinctive character, unlike a trade mark. Simultaneously, accumulate evidence capable of demonstrating acquired distinctive character across the entire relevant EU territory — sales figures, advertising expenditure, recognition surveys in individual markets — rather than a separate evidential package for each member state.
The type of mark or design should be correctly identified before filing: where the subject matter of protection cannot be clearly and precisely identified from the representation, EUIPO typically issues a deficiency notice with an opportunity to remedy it rather than refusing immediately.
The official EUIPO fee for a trade mark application does not depend on the type of sign — a 3D or position mark costs the same as a word or combined mark. The financial barrier here lies not in the fee itself but in preparing the evidential base for acquired distinctive character.
Where after registration someone attempts to register a similar sign for comparable goods, file an opposition against the conflicting application at EUIPO promptly the three-month window following publication cannot be reinstated. Legal support at the strategy selection stage is critical: an incorrectly chosen type of mark or design can cause delays and additional costs even where a formal refusal is ultimately avoided. Dr. Emil Benatov & Partners advises on the protection of product shape, colour, and appearance in the EU through EU trade mark registration..
