3D Trademark or Industrial Design?

Choosing the right form of legal protection for packaging or product design is not merely a legal formality – it is a critical strategic decision. Businesses frequently invest substantial resources in developing distinctive three-dimensional and two-dimensional design solutions to build a recognisable visual identity, yet often postpone addressing its protection. This oversight can prove costly.

This article analyses the key differences between two forms of legal protection – industrial designs and three-dimensional trademarks (3D marks) – and provides practical guidance for selecting the optimal regime at each stage of a product’s lifecycle.

1. Industrial Design: Protecting the Appearance of a Product

Registration of an industrial design grants the exclusive right to prevent others from using the same or a confusingly similar design. It is a targeted tool for combating “clones” – products that visually copy your product, even where they carry a different logo or brand name.

A registered industrial design allows you to prohibit a competitor from manufacturing a product that creates the same overall impression on the informed user as your registered design. Critically, you do not need to prove consumer confusion – it is sufficient to establish that the products create the same visual impression. However, if a competitor meaningfully alters the proportions, adds relief elements, or modifies details such that the overall impression changes, a court may not find infringement.

Registration is relatively fast (currently approximately four to seven months at UANIPIO), but the strength of the protection depends on two cumulative requirements: novelty and individual character.

Novelty and Individual Character

Under Article 6(1) of the Law of Ukraine On the Protection of Rights to Industrial Designs, a design qualifies for protection if it is new and has individual character. A design is considered novel only if no identical design was made available to the public before the filing date (or priority date). A design has individual character if the overall impression it produces on an informed user differs from that produced by any design previously available to the public.

Novelty may be challenged on the basis of any public disclosure anywhere in the world – internet publications, catalogues, exhibitions, social media, sales, or registrations in other jurisdictions. If a bottle or packaging design was disclosed in China or the United States, it will not be considered novel in Ukraine.

Supreme Court, 24 November 2022 (Case No. 910/13251/21): confirmed that novelty of an industrial design is assessed on an extraterritorial basis – what matters is the fact of public disclosure, not the location where it occurred.

⚠️ Practical risk: Attempting to “refresh” an old design through minor modifications generally fails. Minor differences from a previously known design do not confer individual character – what matters is whether the dominant elements create a different overall impression. This approach was confirmed by the UANIPIO Appeals Chamber decision of 27 August 2025 (Order No. 261/2025 of 3 November 2025).

Northern Commercial Court of Appeal, 17 May 2022 (Case No. 910/21726/17): held that novelty of an industrial design is assessed by reference to the totality of its essential features as a unified whole. Accordingly, the fact that individual elements of a product are publicly known does not in itself indicate loss of novelty of the design, provided that the compositional and stylistic combination of those elements as a whole is unique.

2. Three-Dimensional Trademark: Protecting a Sign That Identifies the Manufacturer

The defining advantage of a 3D trademark is its potentially unlimited duration – the certificate is issued for 10 years with the right of unlimited renewal. By contrast, an industrial design certificate has a maximum term of 25 years from the filing date.

Unlike an industrial design, a 3D mark does not protect the appearance of the product itself, but rather a sign by which goods are distinguished from those of competitors – a sign that identifies the commercial source of the goods. Once registered, the owner of a 3D mark may prohibit the use of an identical three-dimensional shape as a sign, as well as any confusingly similar three-dimensional sign that could lead consumers to associate the goods with the same manufacturer.

A 3D mark is therefore a powerful tool against competitors who seek to capitalise on the recognition of your product’s shape by exploiting consumer associations with your brand. The limitation: if a competitor copies the shape but applies a large, visually dominant label bearing its own name, proving actionable similarity becomes significantly more difficult.

Distinctiveness: The Key Hurdle

Registering a 3D trademark is more demanding than registering a standard word mark or logo. Under Article 6(2)(7) of the Law of Ukraine On the Protection of Rights to Marks for Goods and Services, signs that represent only a shape dictated by the nature of the goods, necessary to achieve a technical result, or that gives substantial value to the goods, cannot be registered as trademarks.

Soremartec S.A. v. Jsc “Landrin” (Commercial Courts of Ukraine): The courts found that a sign depicting a coconut-covered candy lacked distinctiveness for the goods for which it was registered, as it was perceived as a realistic depiction of any product from the covered class – confectionery, chocolate products, or round ice cream with sprinkles. The court also found that the mark had not acquired distinctiveness through use.

For this reason, applicants should assemble compelling evidence of acquired distinctiveness through use before filing a 3D trademark application. During examination, UANIPIO considers evidence of the duration of market presence, production and sales volumes, promotion activities specifically related to the 3D mark, and consumer survey results.

📋 Successful example – lego: On 8 October 2024, the UANIPIO Appeals Chamber recognised the three-dimensional lego minifigure as a well-known trademark in Ukraine (applicant: Lego Juris A/S, Denmark). The decision was based on a comprehensive evidentiary record comprising sociological data, documented evidence of use in Ukraine, and consistent global branding, including the Ministry of Education’s partnership with lego and educational projects across Ukraine.

3. Practical Recommendations: Choosing the Right Regime

When selecting the optimal form of protection, the product’s lifecycle stage and the specific characteristics of the IP object must be considered – both directly affect the appropriate budgeting and the achievable scope of protection.

1. Choose the form of protection based on the desired scope of exclusive rights.

The key structural difference lies in registration flexibility. An industrial design registration can cover multiple design variants within a single Locarno class through one multiple application – an entire product line, furniture series, tableware set, or label variations. Invalidation of one design does not affect the others.

A 3D trademark operates on a “one application – one mark” basis. The scope of protection is strictly bounded by the representation filed. Any material change – including restyling or the addition of new elements – requires a new registration. This makes 3D trademark protection most appropriate for stable, flagship products whose design will remain unchanged for years.

2. Align your protection strategy with the product lifecycle stage.

2.1. Market Launch Stage

When a product is being developed or entering the market, the priority is to protect the investment in design development. The most effective tool at this stage is an industrial design. A multiple application allows you to protect all design variants or a broad product range before the market determines the sales leader. The application should be filed before public disclosure, or within the 12-month grace period provided by Ukrainian law to preserve novelty.

2.2. Maturity Stage

Once a product has been on the market for an extended period (more than one year), industrial design registration becomes unavailable due to loss of novelty. The only effective mechanism in this scenario is registration of a 3D trademark. Protection is grounded not in the novelty of the design, but in its acquired association with the brand – established distinctiveness through use.

2.3. Seasonal Products and Limited Collections

For products with a short lifecycle – holiday packaging, seasonal collections – trademark registration is economically impractical given the length of the registration procedure (18–24 months). The optimal solution is an industrial design, which allows rapid protection of a design for the duration of its commercial relevance.

Industrial Design	3D Trademark
Protects: product/packaging appearance	Protects: identifying sign (brand source)
Term: up to 25 years (initial 5 yrs + renewals)	Term: 10 years, unlimited renewals
Multiple designs in one application	One application per mark
No examination for earlier similar designs	Full substantive examination
Best for: launch stage, product lines	Best for: mature, flagship products
Fast: ~4–7 months	Slower: ~18–24 months

Conclusion

The choice between an industrial design and a 3D trademark is not a dilemma when you understand the scope of each form of protection and the stage of your product’s evolution.

Industrial design is typically the right tool at the launch stage – when the priority is to quickly protect a design or an entire product line and prevent copycat products before the brand builds market recognition.

3D trademark is a tool for a mature business – when the product’s design has become independently recognisable and transforms into an asset requiring long-term legal protection tied to the brand.

The optimal strategy is dual protection: register an industrial design before market launch, and register a 3D trademark at or after market entry once the mark has acquired distinctiveness through use. This approach ensures IP protection at every stage of the product’s commercial life.

Do not wait for imitations to appear – register your intellectual property rights in time.