Shape Trade Marks and RB (Hygiene Home) Australia
Pty Ltd v Henkel Australia Pty Ltd [2024] FCAFC
10
A recent decision from the Full Court of the Federal Court of
Australia has clarified the law with respect to what constitutes
use "as a trade mark" and in doing so, appears to have
greatly increased the relevance and power of shape trade marks.
Background
The appellants were RB (Hygiene Home) Australia Pty Ltd and
Reckitt Benckiser Finish BV (RB). RB was the owner
of an Australian trade mark registration
(Registration) comprising an image of its Finish
Powerball product as follows:
The respondent, Henkel Australia Pty Ltd
(Henkel), marketed and sold a product called SOMAT
Excellence 4in1 dishwasher gel caps (Somat
Product). The Somat Product had packaging which displayed
a stylised image of one of its gel caps (Somat
Device), as follows:
