In a trade mark infringement dispute between LTC (the makers of London's iconic black cab) and the makers of the forthcoming hybrid electric taxi, the Metrocab, the Court of Appeal decided that the features of the shape of the London cab (such as the slope of the windscreen, the deep/ high bonnet and the extended front grille) did not depart significantly from the norms of the car sector. As a result, LTC's trade marks were cancelled as the shape marks lack inherent distinctive character.
Applying the test laid down in KitKat, the marks also lacked acquired distinctiveness - adverts on flip-up seats in the cabs advertising the name of the manufacturer were not enough to educate the consumer that the shape of the taxi indicated its origin.There must be evidence from which it can be deduced that a consumer understands there is only one manufacturer of products of that shape.
It remains to be seen whether the Supreme Court will grapple with some of these issues relating to distinctiveness.
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