he requirements for registrability of a three-dimensional mark are dependent upon whether the mark falls within the definition of distinguishing guise in section 2 of the Trade-marks Act and accordingly upon whether the mark is a shaping of goods or their containers, or is a mode of wrapping or packaging goods. If a three-dimensional mark does not fall within the definition of a distinguishing guise, then it may be registrable as an ordinary trademark, i.e. as the kind of trademark referred to in paragraph (a) of the definition of trademark in section 2 of the Act. On the other hand, if a three-dimensional mark falls within the definition of a distinguishing guise, then it may be registered only as a distinguishing guise (and is subject to the special requirements applicable to registration of distinguishing guises) and cannot be registered as an ordinary trademark. This is because the context in which the word "mark" is used in the definition of "trademark" indicates that it is used in a narrow sense that excludes guise (Registrar v. Brewers Association, (1982) 62 C.P.R. (2d) 145.)
Where an application is filed for registration of a three-dimensional mark that is not a distinguishing guise, the application should include a description of the mark that makes clear that the trademark applied for is a three-dimensional mark. Where it is not clear whether an application is intended to cover a two-dimensional or a three-dimensional mark, the Office will ask the applicant for a written clarification.