The claimant asserted trade mark rights in the shape of its Viennetta ice cream.
Held: ‘There is another, quite different, reason why I do not regard the shape alone as having been established as a trade mark. It is not sufficiently distinctive. I revert back to the fact that 15% thought that one or more ice cream products were Viennetta. A trade mark must, in principle, be a unique identifier – denoting one trader and none other. If it is shown that it mainly so acts but also denotes, or may denote, others to a lesser but nonetheless substantial degree, then I think: – It is not capable of distinguishing Art 3(1)(a) – It is ‘devoid of distinctive character’ Art 3(1)(b) – It has ‘not acquired a distinctive character’.
Judges:
The Hon Mr Justice Jacob
Citations:
[2002] EWHC 2709 (Ch)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Associated Newspapers Limited, Daily Mail and General Trust Plc v Express Newspapers (an Unlimited Company, Incorrectly Sued As Express Newspapers Limited) ChD 11-Jun-2003
The claimants sought to prevent the respondents from starting an evening newspaper entitled ‘THE MAIL’ as an infringement of their registered mark, and as passing off. In turn the defendant challenged the validity of the mark.
Held: The word . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 04 October 2022; Ref: scu.178556
