Anyone with even a basic knowledge of intellectual property law knows that a trademark must enable consumers to distinguish the product of one enterprise from the products of other enterprises. To be registrable, the trademark must be distinctive and non-descriptive. A mark can be distinctive in two ways: (1) inherent distinctiveness; and (2) distinctiveness through use. In addition, the trademark must be something other than, and separate from, the goods themselves. This rule applies to the registration and protection of conventional trademarks, as well as configuration marks.
A three-dimensional mark cannot be registered unless the applicant can demonstrate the distinctive character of the mark. Where the shape applied for as a three-dimensional mark results merely from the nature of the goods themselves, it cannot be registrable due to the lack of distinctiveness. For example, a light bulb shape is not registrable in relation to light bulbs, and a shape of a tire is not registrable for tires. In this case, the sign (the shape of a product) and the goods are merged and the sign cannot perform the trademark function in conveying information to the consumers as to the origin of a product.
Signs that are not distinctive in nature can still qualify for registration for being distinctive through continued use. Thai law has adopted this approach. A shape mark is considered distinctive if an applicant can prove that, through the long and extensive sale and advertisement, the sign has become fixed in the mind of the public or the consumers to the extent that it can distinguish the goods or services under the sign from goods or services of others (The DIP Regulation, Clause 3.1.2).