Monopolised product shapes and factual distinctiveness under s 41(6) of the Trade Marks Act 1995 (Cth)

This article considers whether functional shapes may be registered under s 41(6) of the Trade Marks Act 1995 (Cth) based on the generation of factual distinctiveness under a trade monopoly. The ultimate conclusion is that the trade monopoly itself should not preclude registration. The article then considers the policy implications of registering functional product shapes as trade marks. It argues that many of the policy concerns relating to the registration of such shapes are overstated and/or are not reflected in the Trade Marks Act 1995 , and suggests legislative reform which should prevent the registration of the most undesirable trade mark monopolies.