Kitchen equipment manufacturer Whirlpool registered the shape
of a food mixer as a Community trade mark.
Its application for the shape mark was initially rejected until
the word KITCHENAID was applied to the mixer, after which
the shape was deemed to be distinctive.
Rival Kenwood later entered the same market with a similarly
designed mixer, prompting Whirlpool to sue for trade mark
infringement and passing off.
Whirlpool alleged that Kenwood's mixer was detrimental to
the distinctive character of Whirlpool's mark, and/or was
obtaining an unfair advantage due to the similarity between the
products.
The High Court found that even though there was enough
similarity between the two products to remind consumers of the
other product, this was not the same as a consumer believing that
the two products were the same.
