Whether features of a (usually three dimensional) sign that was formely protected by a patent can be the object of a valid trade mark registration has been the subject of quite a few decisions (see C-48-09 P (LEGO brick), IPKat post, joined Cases C‑337/12 P to C‑340/12 P (Yoshida knives), IPKat post, and TrafFix Devices, Inc. v. Marketing Displays, Inc., the leading US Supreme Court decision on the subject).Trade mark owners have generally not fared well when the sign for which protection was sought was the object of an expired utility patent. Courts consider trade marking such shapes to be an extension of the limited term of the patent and contrary to public policy.However, a key question which has not been addressed with a lot of attention by most courts is what exactly is the object of a utility patent. It is not the specific embodiment of the technical teaching used to illustrate the teaching, it is the technical…
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