Curious tissue dispenser

03 August 2021

The statues on Easter Island, believed to have been made in the 11th century, are world-famous and go by the name Moai. We did not expect that these statues would also provide inspiration for a rather curious tissue dispenser (and yet we come across many innovative products every day).

Of course, there are often crazy products for sale. But this dispenser is interesting from a trademark law point of view because this product has been applied for as a three-dimensional trademark in the European Union. This raises interesting questions.

Is such a shape a distinctive mark?

Will someone be able to recognize the dispenser by its shape? So is the shape distinctive for dispensers? Of course, it is at least a remarkable shape. On the other hand, the question is whether people will recognize the shape as a brand, i.e. as a distinctive sign representing the origin of the products. So can this shape have a brand function at all?

Doesn't the shape, on the contrary, determine the attractiveness of the product?

Not only must a trademark have distinctive character, various additional requirements apply. For example, the shape may not give a substantial value to the goods. In other words, if the shape of a product is so attractive that the product is bought for that shape alone, the sign is excluded from trademark protection. This requirement seems to be a major stumbling block in the case of the dispenser.

Socially undesirable?

Also, when applying, you have to think about whether it is socially desirable for 1 company to claim this. Trademark rights symbolize monopolizing names and logos for personal gain. As a trademark owner, you then have to be careful if you take inspiration from cultural heritage. You should wisely stay away from names, symbols, etc. of indigenous peoples. Otherwise, as a company, you will be the laughing stock before you know it. For example, the whole of Mexico was outraged when a film producer registered Dias del Los Muertos as a trademark (this is an important holiday). Another example: the term Hakuna Matata from the Disney movie was seen by some as the takeover of African heritage.

Whether this will also be the case with the images of Easter Island is of course questionable. Probably this trademark holder has other problems to solve first. But there is no doubt that this curious product is very interesting in trademark law terms!


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