In 1966, Philips Electronics developed a new type of three-headed rotary shaver and some thirty years later obtained a registration in the United Kingdom for a trademark consisting of a graphic representation of the shape and configuration of a shaver comprising three circular heads with rotating blades in the shape of an equilateral triangle. In 1995, a competitor, Remington, began to manufacture and sell in the United Kingdom a shaver which also featured three-rotating heads. Philips sued Remington and their dispute is the subject of ongoing court proceedings.

In the most recent decision in the dispute, the European Court of Justice was asked by the U.K. Court of Appeal to clarify several questions, principal among them being whether Article 3(1)(e) of the Council Directive 89/104/EEC must be read to mean that a sign consisting exclusively of the shape of a product is unregistrable if it is established that the essential functional features of the shape are attributable only to the technical result. The Court, in Philips Electronics NV v. Remington Consumer Products Limited, held that a "sign consisting exclusively of the shape of a product is unregistable ... if it is established that the essential functional features of that shape are attributable only to the technical result." The Court observes that interpreting Article 3(1)(e)(second indent) this way ensures that the public interest will be served by not allowing trademark law to be used to secure exclusive rights in technical solutions or functional characteristics: "The Directive reflects the legitimate aim of not allowing individuals to use registration of a mark ... to acquire or perpetuate exclusive rights relating to technical solutions." Otherwise, allowing for such marks would "prevent ... competitors from freely offering for sale products incorporating such technical solutions or functional characteristics in competition with the proprietor of the trade mark." Furthermore, the Court noted that Article 3(1)(e) cannot be overcome by establishing that there are other shapes which provide for the same technical result, and also noted that a sign refused registration under Article 3(1)(e) can never acquire a distinctive character through the acquired distinctiveness provisions set forth under Article 3(3).

In response to the other questions posited by the U.K. Court of Appeal, the Court responded that (1) there is no class of marks having a distinctive character by their nature or by the use made by them which is not capable of distinguishing goods or services within the meaning of Article 2 of the Directive; (2) the shape of an article in respect of which a mark is registered does not require any "capricious addition, such as an embellishment which has no functional purpose"; and (3) that extensive use of a sign which consists of the shape of those goods, but not those deemed unregistrable under 3(1)(e) as noted above, may be sufficient to give the sign a distinctive character where a trader has been the only supplier of particular goods to the market, but it is up to the national court to determine the circumstances pursuant to Article (3)(3).

The case has been referred back to the U.K. Court of Appeal for a final decision, but the ECJ's interpretation of Article 3(1)(e) promises not only to have great significance with respect to the trademarks involving three-dimensional shapes in the European Community, but also the Court's analysis of Article 3(1)(e) will be subject to further interpretation as to what constitute "essential functional features" of a shape "attributable only to the technical result."