EUIPO 2026 Guidelines Tighten Scrutiny of Functional Shape Marks

The European Union Intellectual Property Office (EUIPO) brought its 2026 Guidelines for Examination of European Union Trade Marks into effect on 1 July 2026. For three-dimensional marks, one of the most consequential areas remains Article 7(1)(e) EUTMR, which excludes signs consisting exclusively of shapes or other characteristics resulting from the nature of the goods, necessary to obtain a technical result, or giving substantial value to the goods. The practical significance is not simply that shape marks face a higher distinctiveness hurdle. It is that some product features are structurally unavailable for perpetual trade mark protection.

Recent commentary has sometimes described EUIPO’s analysis as a “functional dissection” of a three-dimensional sign: identify its essential characteristics, then assess whether those characteristics perform a technical function or are themselves a major source of the product’s value. That shorthand is useful, but the currently verifiable EUIPO materials do not present “Functional Dissection Test” as a newly named standalone test. The safer legal reading remains anchored in Article 7(1)(e), EU case law and the Office’s existing methodology for identifying essential characteristics and assessing their function, aesthetic role and commercial significance.

The first question is not distinctiveness, but whether the shape is registrable at all

A common strategic error in three-dimensional trade mark filings is to frame the dispute entirely around consumer recognition. Evidence of sales, advertising, market share, media coverage and surveys can be highly relevant where the objection concerns inherent distinctiveness. Article 7(1)(e), however, addresses a different policy problem. EU trade mark law does not allow renewable trade mark rights to be used to lock up indefinitely product characteristics that should remain within the domains of patents, designs or open competition.

The sequence therefore matters. Before asking whether consumers identify the shape with a single undertaking, applicants should ask whether the shape falls into one of the excluded categories. If the essential characteristics are necessary to obtain a technical result, or if the shape itself gives substantial value to the goods, the application may encounter an absolute ground that cannot be cured by evidence of market recognition.

This changes how evidence should be prepared. A large file of turnover figures and advertising expenditure may still fail to address the decisive issue if it does not explain which features are non-functional, which are optional rather than technically dictated, and which visual elements actually perform a source-identifying role.

“Functional dissection” is best understood as an evidence framework, not a magic formula

In technical-shape cases, the practical analysis often begins by identifying the sign’s essential characteristics and then examining their relationship with the technical result. Patent specifications, engineering drawings, design files, product manuals, testing data, advertising claims and competitor structures can all become relevant. A feature once promoted in a patent or technical document as improving cooling, grip, load-bearing, assembly or fluid distribution may be difficult to recast later as merely decorative branding.

Applicants should also avoid the simplistic argument that the existence of alternative designs automatically defeats functionality. EU practice focuses on the characteristics of the shape applied for and whether those characteristics perform the relevant technical function. Alternative designs may provide context, but they do not by themselves answer the Article 7(1)(e) question.

The “substantial value” limb requires similar care. It is not a rule that attractive products are unregistrable. The inquiry is whether the shape or other characteristic contributes substantially to the value of the goods. Design reputation, marketing, price positioning, consumer motivation, awards and the nature of the product category may all matter. That makes the issue particularly sensitive for furniture, lighting, luxury packaging and visually led consumer electronics.

Acquired distinctiveness cannot rescue a shape excluded by Article 7(1)(e)

This is the point with the greatest impact on filing strategy. Article 7(3) EUTMR allows acquired distinctiveness to overcome objections under Article 7(1)(b), (c) and (d). It does not extend that route to Article 7(1)(e). If a shape is excluded because it results from the nature of the goods, is necessary to obtain a technical result, or gives substantial value to the goods, even strong evidence that consumers recognise the shape as a badge of origin will not make that shape registrable.

Evidence budgets should reflect this. Brand owners sometimes react to a refusal of a shape mark by commissioning broad consumer surveys. That may be sensible where the real obstacle is lack of distinctiveness. Where Article 7(1)(e) is in play, the better first step is a functionality and value-source audit. If the application is blocked by an exclusion that acquired distinctiveness cannot cure, spending heavily on recognition evidence may add little.

The same distinction matters in invalidity proceedings. A long-standing three-dimensional registration is not automatically safe because it has become famous. If the sign should have been excluded under Article 7(1)(e) at the filing date, later market recognition does not necessarily remove that vulnerability. For challengers, this offers a route to invalidity that is different from arguing ordinary lack of distinctiveness; for proprietors, it makes early technical and design documentation part of long-term trade mark risk management.

Shape-mark strategy should be coordinated with patents and designs before launch

The most useful response is not merely to rewrite the trade mark application. Product teams should separate at least three categories of features before launch: technically indispensable structures; features whose main contribution is aesthetic or commercial value; and non-functional visual elements capable of consistently acting as brand identifiers. Patents, registered designs, copyright, unfair competition and trade marks can then be allocated more realistically across those categories.

Applicants can also narrow the trade mark strategy itself. Instead of trying to monopolise the entire product silhouette indefinitely, a business may achieve more stable protection by isolating non-functional source-identifying elements: a particular position mark, surface pattern, colour combination, non-essential ornamentation, or a configuration combined with word or figurative branding. The formal scope may be narrower, but the resulting right may be more defensible.

Companies already facing opposition, invalidity or infringement disputes should revisit their historic patent and design records as part of the trade mark file. Engineering statements made years earlier can become powerful evidence in a later functionality dispute. The 2026 EUIPO Guidelines reinforce a longstanding boundary: a three-dimensional trade mark is not a substitute for extending expired patent or design protection. The durable strategy is to decide, at the beginning of the product lifecycle, which features are functional, which are design-led and which can genuinely serve as trade mark indicators.