One of Philips marketing success stories is the Philishave, the shaver with the well known three heads. Philips filed a trademark for this shape, consisting of the overall shape of an inverted equilateral triangle with three heads sitting within a raised faceplate of clover leaf design superimposed on the triangle. Remington, attracted by the success of the Philips rasor, also introduced the three headed rasor. A long trademark battle emerged.
On Jan. 26 the Court of Appeal in the UK upheld Judge Rimer’s first instance decision that the mark was invalid because it consisted of features of the shapes of the goods which were necessary to produce a technical result, Trade Marks Act 1994 s.3(2)(b).
However, the Appeal court overturned Rimer J’s ruling that two device marks were invalid. The policy of the shape marks provisions was all important. The policy was that competition in the relevant market for the goods must not be impaired by the registration of the shape of goods so as to prevent others from selling products incorporating technical solutions or functional characteristics. There was no objection on that ground to the device marks. They were all images with eye appeal of an abstract, non-technical and non-functional nature. None of them were a “shape of goods” in the functional sense used in the Act and fell outside the competition policy of the shape mark provisions and outside the scope of the functionality principle embodied in Art 3(1)(e) Trade Marks Directive 89/104 and s.3(2)(b) of the Trade Marks Act 1994.