If a product has a novel shape and configuration, appeals to the eye, and is not dictated by a function, then the shape can be registered as an Industrial Design. Upon registration, exclusive rights are given to the owner of the design for a limited period of time. Furthermore, if the shape of a product is distinctive it can be registered as a trademark in some countries (not so in Malaysia at present).
Pfizer has registered the unique shade of blue of the Viagra® tablet as a trademark in countries where colour of a product can be registered as a trademark. It also registered the unique shape of the tablet as a trademark in many countries.
In Hong Kong, however, the Intellectual Property office had refused the registration of the shape and colour of the Viagra® tablet as a trademark on the grounds that it is not distinctive.
This view was not shared in Europe where, shape and colour was registered as a “community trademark”.
Malaysia is currently revising its law on trademark and is considering giving trademark rights to shape, colour, and sound so long at they are distinctive of the good or service.
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