Non-traditional UK trade marks

28 November 2013

Nick Aries, Tristan Russell

In October, the English Court of Appeal handed down judgments in two joined cases concerning the registrability of certain trade marks (Nestlé v Cadbury; and J W Spear & Sons v Zynga).

The Court found that the two trade marks at stake (a particular colour mark for Cadbury in one case; and a scrabble tile mark for Spear/Mattel in the other) failed to fulfil the requirement of being “a sign”, and were therefore also insufficiently graphically represented. The Court said this was because the registrations at stake potentially covered a variety of different marks. The judgment means that a number of existing ‘non-traditional’ UK trade marks (i.e. sounds, colours, shapes, etc) may be vulnerable to invalidity, depending on their form of registration and any accompanying descriptions.