Case: Coca-Cola Trade Marks [1986] R.P.C 472
The House of Lords rejected an appeal against an application to register the coca-cola bottle as a trademark and held that
“the word ‘mark’ both in its normal meaning and its statutory definition is apt only to describe something which distinguishes goods rather than the goods themselves. A bottle is a container, not a mark”.
According to Lord Templeman, such an application if allowed, may lead to the perpetual monopoly on the design of containers.
“A rival manufacturer should be free to sell any container or article of a similar shape provided it was labelled or packaged differently in such a way as to avoid confusion as to the origin of the goods on the container”.
Lord Templeman’s decision in Coca-Cola has been reversed in the UK by legislation implementing the European Union trade mark directive, the first shape-based registration application under the new UK law included the coca-cola bottle.
Case: Smith, Kline and French \laboratories Ltd v Sterling – Winthrop Group Ltd [1976] 93 R.P.C 511
It this case, there was an application to register coloured capsules for drugs. The capsules were made in two halves, one coloured, the other half was transparent through which the tiny multi-coloured pellets could be seen. The applicants attempted to register the whole external appearance of the capsules. An argument was raised in the court that colour combination could not be considered a trade mark.
The House of Lords held that there was nothing in the Trade Mark Act 1938 which excluded a mark which covers the whole surface of the goods, nor was there anything to prevent a three dimensional mark being a trademark. The distinctiveness of the capsules was important as the capsules were inherently adapted to distinguish the goods of the applicants from other traders.
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