Can Your Product’s Shape Be a Trade Mark in Australia?

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Can Your Product’s Shape Be a Trade Mark in Australia?

Pop quiz: glance at a row of bottles with no names, no labels, no colour—would you still spot a classic Coca-Cola contour bottle or the unmistakable curves of a Pepsi? Absolutely. The human mind connects these distinctive shapes to their brands in a flash, long before any words or logos—because those forms have become more than containers.

They are symbols.

This blog is all about tapping into that power for your business: how you can protect the unique shape of your own product, so nobody else can copy it and confuse your customers.

If you’re a creative business or brand owner in Australia searching “How do I protect my brand name?” or “Can I stop competitors copying my packaging in Australia?”, you’ll discover here how shape trade marks work, when they’re right for you, and what real-world cases like Moccona’s famous coffee jar teach us about standing out in today’s market.

Can Your Product’s Shape Be a Trade Mark in Australia?

When searching online for “How do I protect my brand name?” or “Can I stop competitors copying my packaging in Australia?”, business owners and creative professionals aren’t just worried about logos or business names—they’re also concerned about their product’s look and feel. In today’s competitive Australian market, more businesses are asking whether the shape of their products—like bottles, boxes, or even building outlines—can be protected by law. This blog dives into shape trade marks, how they work, when they’re right for your brand, and what the latest Moccona coffee jar case means for you.

What Is a Shape Trade Mark?

In Australia, a shape trade mark is a three-dimensional aspect of a product (like a uniquely designed bottle or box) that acts as a badge of origin for your business. Unlike design registration, which only protects the appearance of a product, a trade mark protects how customers identify your business itself. When shoppers see a product’s shape and immediately think of your brand, that’s the sign of a strong trade mark.

Shapes that work as trade marks must be recognisable and associated with your business—not just decorative or functional. A classic example is the shape of the Ferrero Rocher chocolate box, which is instantly identifiable. If you’re wondering, “How do I use my packaging as a trade mark in Australia?”, the answer is: make sure its look signals your brand to consumers, not simply the product type.

What Shapes Might Be Protected in Australia?

Only certain shapes are eligible for protection as trade marks:

• Unique product packaging (like the Frank Green water bottle)
• Distinctive containers (e.g. the Moccona coffee jar, subject of a recent Federal Court case)
• Famous structures used in business (e.g. the Sydney Opera House sails, when used in branding)

Real Case Study: The Moccona Coffee Jar Decision

In November 2024, the Federal Court of Australia decided a major case about the shape of the Moccona coffee jar (Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd FCA 1277). Moccona’s jar was registered as a trade mark, and when rival Vittoria released a similar-shaped jar, Moccona alleged infringement.

The court dug into whether the Moccona jar’s shape was truly “distinctive” or just functional—was the jar shape really understood by customers as a badge of origin for Moccona coffee, or was it simply a practical design for storing coffee? Crucially, the court ruled that to be protected, a shape trade mark must have “something extra”—it cannot be merely functional or generic. Moccona succeeded because, after years of prominent advertising showing the jar as a hero without labels, consumers had learned to associate the shape with the brand.

On the other hand, the Vittoria jar was found to be more functional and plain, not serving as a trade mark.

The shape wasn’t highlighted or promoted to consumers, and branding such as logos largely overshadowed any shape recognition.

Lesson for business: The more you invest in making your shape stand out and educating your customers about its link to your brand, generally speaking, the stronger case you have for trade mark protection.

How can you get a shape trade marks registered?

If you’re asking “Can I register my product’s shape as a trade mark in Australia?”, here are the two main criteria:

For Australian brand owners, legal cases such as the Remington shaver case and the Moccona decision have set strong precedents. The courts look for evidence that a shape is more than just helpful for stacking or packaging—it needs to be instantly linked to your brand.

Practical Tips: How to Use Shape Trade Marks Effectively

Here’s how Australian businesses can use shape trade marks to their advantage:

1. Design with distinctiveness: Don’t follow just what’s popular. Build unique, memorable shapes that communicate something about your brand.
2. Advertise your shape: Campaigns should highlight not just your logo, but your product shape—show it off in ads or packaging without labels sometimes.
3. Collect evidence: Document your design process and gather examples of how your shape is used in market so you can show distinctiveness when applying.
4. Monitor your competitors: Be ready to spot copycats and take legal action if needed.
5. If your shape doesn’t quite meet trade mark standards, consider design registration for appearance protection as an alternative.

Learn more about our trade mark advice services at Sharon Givoni Consulting.

FAQs About Shape Trade Marks in Australia

What’s the difference between a shape trade mark and a design registration?
A shape trade mark identifies the business source; design registration covers the appearance.

Can I protect a functional shape?
No. Only non-functional, distinctive shapes that serve as a badge of origin are eligible.

What are some examples of shape trade marks in Australia?
Examples include the Sydney Opera House sails, Frank Green water bottle, Ferrero Rocher’s chocolate box, Coca-Cola’s bottle shape and the Moccona coffee jar.

How do I use a shape as a trade mark?
Show the shape in advertising and packaging as a clear sign of your business—don’t let it get lost behind normal logos or labels.

Why should small businesses consider shape trade marks?
They help protect visual identity, stop competitors imitating your unique designs.

Sharon Givoni Consulting offers:

• Assessment: We review whether your product’s shape is distinctive and suitable for trade mark registration.
• Trade mark filing: We prepare and lodge robust applications, including evidence to meet legal standards.
• Dispute resolution and enforcement: We help you respond quickly to competitors, defending your brand in practice and in court.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.