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Are Bottle Shapes Distinctive

For several years supermarkets have sold 'own brand' products. They seem to identify the nature of their contents by the use of a bottle shape or other feature, similar in design to a named brand. The practice is now quite popular. Thus a company may introduce a new kind of shampoo. It chooses a particular shape for the container and by spending large sums advertising, it makes for itself a market. Along then, comes the supermarket who manufacture an item which is intended to satisfy the same market, and make this clear by using a similar "get up" to the own brand bottle.

Manufacturers of own brand products have persisted with the rather stupid argument, that these own brand products cause confusion, and that therefore the supermarket is guilty of passing off. They pretend that their containers contain the same product as the named brand product. I have to say that I have never seen anything to suggest that shoppers are so confused. They understand the process very well, and merely refuse to pay a substantial premium for a product which will be functually equivalent.

At the same time, one can feel some small element of sympathy for the named brand products. They have created an identity for a product line, and have spent, no doubt, many millions of pounds in establishing a market. The supermarkets take a free ride on the back of such marketing and get away without charging the same price simply on that basis.

Nevertheless, the passing off route does not work. There is no real confusion in shoppers minds. Recently, in re Proctor and Gamble Ltd CA Times 17 February 1999, Proctor and Gamble sought to take the matter on through the Trade Mark route. They sought to take advantage in the extension in the 1994 Trade Marks Act under which Trade Marks can be registered for a much wider range of product features than the logo. They sought to register the shapes of the bottles under the Trade Marks Act as trade marks, on the basis then that having once registered these trade marks an own brand supplier would not be able to use similar shaped bottles to promote their own brands. The case if successful would have a major impact on supermarkets, I think, on shoppers.

The Court of Appeal were kind enough to dismiss the appeal, though it may yet go to the House of Lords. The argument was that the features of the bottle were not sufficiently distinctive to be registerable as trade marks. They consisted merely of features which, separately, would have been commonplace on many bottle designs. The point of law was, that the issue of whether they were distinctive, was to be taken by reference to the items claimed as marks themselves, and not by reference to any background marketing operations.

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18 October 2013 http://www.swarb.co.uk/lawb/ipOwnBrand.shtml 183 18 October 2013