Kan funktionell eller estetisk design varumärkesskyddas?

Sammanfattning: Unlike other Intellectual Property Rights, trademark law does not have any time restrictions concerning protection possibilities. This constitutes companies to apply for trademark protection for functional or aesthetical designs instead of, or as a supplement to, patent and design protection. Therefore, there are absolute grounds for refusal that include that a sign with either a technical result or a substantial value will not receive a trademark registration. These grounds for refusal exist in order to prevent a continuous monopolization of the market that may lead to limitations for competitors to produce similar designs. However, the absolute grounds for refusal concerning functional or aesthetical design have been criticized for being obscure and difficult to apply. It is still relatively unclear how the question, if a functional or an aesthetical design will be a trademark, is going to be answered. Before the EU Trademark reform package (trademark package) of March 23, 2016 reformed the two absolute grounds for refusal, they stated that signs that consist of a shape that receives a technical result, or gives a substantial value, should not become a trademark. When the trademark package was implemented, the absolute grounds for refusal were reformed to include signs that consist of a shape or another characteristic. Due to that the change is new and has not yet been ruled by the European instances, it is difficult to tell whether the reformed grounds for refusal will be easier or harder to apply. However, it will probably still not be possible to register a functional or an aesthetical design as a trademark in the future. If the characteristics not are essential it is possible to register the design as a trademark.