Whirlpool Corporation & Ors v Kenwood Ltd

Whirlpool Corporation & Ors v Kenwood Ltd

The Court held that although there was sufficient similarity between the kMix and KitchenAid Artisan to establish a link in the mind of the relevant average consumer, there was no evidence that this similarity resulted in unfair advantage to Kenwood or detriment to the distinctive character or repute of the CTM. The evidence did not show any change in the economic behaviour of the average consumer, nor did it establish that any advantage gained by Kenwood was unfair within the meaning of Article 9(1)(c) of the CTMR. The judge did not err in law in his approach to product shapes or in his assessment of the evidence. Accordingly, the appeal was dismissed.

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
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Trade Mark Infringement, Community Trade Mark Regulation, Passing Off, Unfair Advantage, Distinctive Character, Likelihood of Confusion
Intellectual Property Trade Marks Trade Mark Infringement Community Trade Mark Regulation Passing Off Unfair Advantage Distinctive Character Likelihood of Confusion

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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

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the shape of the kMix mixer infringes the Community Trade Mark (CTM) of the KitchenAid Artisan under Article 9(1)(c) of the CTMR by taking unfair advantage of or being detrimental to the distinctive character or repute of the CTM
  2. 2 Whether the similarity between the kMix and KitchenAid Artisan is sufficient to establish a link in the mind of the average consumer
  3. 3 Whether any advantage gained by Kenwood is unfair within the meaning of the CTMR

Ratio Decidendi

The Court held that although there was sufficient similarity between the kMix and KitchenAid Artisan to establish a link in the mind of the relevant average consumer, there was no evidence that this similarity resulted in unfair advantage to Kenwood or detriment to the distinctive character or repute of the CTM. The evidence did not show any change in the economic behaviour of the average consumer, nor did it establish that any advantage gained by Kenwood was unfair within the meaning of Article 9(1)(c) of the CTMR. The judge did not err in law in his approach to product shapes or in his assessment of the evidence. Accordingly, the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; judgment of the High Court (Chancery Division) upheld.