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Trademarks and Shapes

When trademark law was reformed in order to allow the registration of shapes of packaging and products as trademarks, problems were correctly anticipated.

In In re Dualit Trademark reported in the Times on the 19th of July 1999 the issue came before the courts again. In this case the applicants for the trademark, Dualit, manufactured toasters and claimed that their goods had required sufficiently distinctive character by way of shape to be registerable.

It was held that in order to be registerable the element of shape which was claimed to be distinctive had to be of something more than was required in order to achieve a technical result. This is so where the shape itself, irrespective of any word mark, was sought to be registered.

Applicants who sought to establish that the shape had become to be distinctive because of continued use over many years and come to be associated with the applicants goods, proper evidence had to be presented to the court.

Surveys, a regular part of trademark and passing off proceedings, must be properly planned and implemented. They must be designed to show, for this purpose, that at least a significant proportion of the ultimate purchasers identified the goods as being those of the applicant by virtue of the shape of the goods. In this case the questionnaire was criticised because it had encouraged some of the people surveyed to speculate. The survey had also concentrated on those who were well enough off to purchase Dualit goods and also to those whose minds would be affected by the design appearance of the product. The survey had however failed to record the numbers of people excluded from the survey by these conditions and therefore the court was not presented with a true picture of the relative people whose minds might be affected by the trademark.

Because of the above difficulties, the application was rejected. In this case, the failure of a survey to establish the case conclusively enough was enough to reject the application for the trademark.

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