Door shuts on appeal as Black Cabs lack of distinctiveness upheld

The Court of Appeal have put another nail in the coffin of 3D marks by upholding the High Court’s decision which saw the Black Cab being deemed as lacking distinctiveness.

The case started with The London Taxi Company (LTC) issuing a claim for passing off and infringement of two 3D trade marks that cover the shape of taxi models, named ‘fairway’ and ‘TX1’. The claim was issued against Frazer-Nash Research who are the manufacturer of the new eco-friendly Metrocab taxi.

When this claim was heard by the High Court, Mr Justice Arnold rejected LTC’s claim for passing off and found the two trade marks on which LTC based their claim to be invalid in relation to Class 12 which covers taxis as the two marks were devoid of distinctive character. He determined that the marks would be seen by the average consumer as “merely a variation of the typical shape of the taxi”.

Arnold also revoked LTC’s EU 3D mark for non-use as he held the use of the mark was not genuine.

This was appealed by LTC on the grounds that Arnold had been wrong in deeming the marks invalid and that there had been genuine use of the EU 3D mark.

The appeal was heard by Lord Justice Floyd and Lord Justice Kitchin in the Court of Appeal, who agreed with Arnold’s ruling in the main and rejected LTC’s appeal.

The Court of Appeal held that Arnold was correct to hold that the marks didn’t have distinctive character and had not acquired it by use.

The Court of Appeal also agreed with Arnold in the revocation of the EU mark for non-use. The model the mark covered has ceased in production for some time, with the second hand market also slowing down quite considerably. LTC argued that sales of other models were enough to show genuine use. However, it was held that the differences between the models were so that it would not be covered by the EU mark.

This judgment has therefore paved the way for the Metrocab to be introduced., putting into use the 5 licenses handed out to them by Transport of London in 2014.

Yet again, a 3D mark has been deemed as invalid, asking serious questions about their longevity.

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