Whirlpool Corporation & Ors v Kenwood Ltd [2009] EWCA Civ 753 (23 July 2009)

Whirlpool Corporation & Ors v Kenwood Ltd [2009] EWCA Civ 753 (23 July 2009)

The Court held that although there was sufficient similarity between the shapes of the KitchenAid Artisan and the Kenwood kMix to establish a link in the mind of the average consumer, the use of the kMix shape did not take unfair advantage of, nor was it detrimental to, the distinctive character or repute of the KitchenAid Artisan CTM. The evidence did not show that the economic behaviour of the average consumer was influenced in a manner that would amount to infringement under Article 9(1)(c) CTMR. Mere erosion of market share, without more, is not actionable under trade mark law.

Citation
[2009] EWCA Civ 753
Parties
Claimant/appellant: Whirlpool Corporation; Claimant/appellant: Whirlpool Properties Inc; Claimant/appellant: KitchenAid Europa Inc; Defendant/respondent: Kenwood Ltd
Jurisdiction
England and Wales
Judgment Date
23 July 2009
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Community Trade Mark Infringement, Shape Marks, Likelihood of Confusion, Reputation and Unfair Advantage, Passing Off
Intellectual Property Trade Marks Community Trade Mark Infringement Shape Marks Likelihood of Confusion Reputation and Unfair Advantage Passing Off

Case Brief

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Parties

Whirlpool Corporation

Claimant/appellant

Whirlpool Properties Inc

Claimant/appellant

KitchenAid Europa Inc

Claimant/appellant

Kenwood Ltd

Defendant/respondent

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the shape of the KitchenAid Artisan mixer, as registered as a Community Trade Mark (CTM), is infringed by the shape of the Kenwood kMix mixer under Article 9(1)(c) of the Community Trade Mark Regulation (CTMR)
  2. 2 Whether the similarity between the two products' shapes establishes a link in the mind of the average consumer
  3. 3 Whether use of the kMix shape takes unfair advantage of, or is detrimental to, the distinctive character or repute of the CTM

Ratio Decidendi

The Court held that although there was sufficient similarity between the shapes of the KitchenAid Artisan and the Kenwood kMix to establish a link in the mind of the average consumer, the use of the kMix shape did not take unfair advantage of, nor was it detrimental to, the distinctive character or repute of the KitchenAid Artisan CTM. The evidence did not show that the economic behaviour of the average consumer was influenced in a manner that would amount to infringement under Article 9(1)(c) CTMR. Mere erosion of market share, without more, is not actionable under trade mark law.

Court Disposition

Appeal dismissed

Orders

  • No finding of infringement under Article 9(1)(c) CTMR
  • No injunction or relief granted against Kenwood