Jose Lorenzo T.

Roman November 15,

2020
2011-40743 Reflection 7

The discussion of Mr. Medalla on shapes made me think of why shapes

are even being considered as subjects of trademarks. Is it really that important
that you have the exclusive right to use the shape? At this point, it is important
to bring up our previous discussion regarding the overlap between design
patents and trademarks, wherein it was submitted that the 15-year protection
the IPC grants design patents should be used to cultivate the “use” necessary
for trademark registration.

Having learned in-depth about trademarks now, I realized that the shape
or the general aesthetic products come in are still driven by an underlying
utilitarian aspect despite the fact that trademarks are ultimately a function of
adoption and use. An example that I can think of which is based on my
personal experience is Stabilo highlighters. A seasoned law student would
surely recognize the cone-like shape but as an avid user of highlighters, I can
attest to the fact that Stabilo highlighters feel better in my hand than most. In
fact, a decision1 rendered by the BLA of the IPO sustained the opposition of the
Schwan-Stabilo Group against the respondent’s mark of “LOTUS
HIGHLIGHTER.”

Like color, shapes are a great branding tool that can engage consumers
in ways traditional above-the-line and below-the-line marketing strategies
cannot. Shapes tap into our subconsciousness, or tendencies we didn’t even
knew we had. They are ways of distinguishing one’s product from another.
Again, to stress, this level of brand awareness can only be achieved through
constant use.

To synthesize the paragraphs above, I would like to use as an example

my most recent phone purchase: a Samsung Galaxy S20. After doing a lot of
research, I chose this phone because it outperformed every phone in its
category, including the iPhone 11. However, the iPhone 11 arguably has a
bigger clout. I thought that this can be rationalized by the fact that it is a Mac
versus Android matter, but I realized that the camera module might play a
factor. The camera specifications of the Samsung Galaxy S20 are comparable
to the camera of the iPhone 11, but the former’s camera module is quite similar
to the camera modules of the lower-tier Samsung models such as the A51. The
camera module of the iPhone 11, on the other hand, stands out and really lets
people know that you have the new iPhone. The very distinguishable layout 2 of
the three cameras sort of acts like a branding tool, or as the young people call
it now, “pasimflex.” Personally, every time I see a phone having 3 cameras in

1
IPC No. 14-2013-00168
2
After checking online, it turns out Apple has a patent application for the iPhone 11’s camera module, so it may well
be on its way to being a protected trademark. <https://www.patentlyapple.com/patently-apple/2020/07/the-patent-
behind-apples-iphone-11-11-pro-surfaces-illustrating-known-and-unknown-camera-configurations.html>
Jose Lorenzo T. Roman November 15,
2020
2011-40743 Reflection 7

the back, I instantly remember “iPhone”, and I associate the owner with
someone having a higher social status. I think this is what Apple is ultimately
trying to achieve, and which to me, it certainly did.