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nec­es­sar­ily make it in­her­ently dis­tinc­tive, he said.

To prove that a trade­mark had be­come dis­tinc­tive through use, the judge said, it was nec­es­sary to show that at the rel­e­vant date a sig­nif­i­cant pro­por­tion of the mar­ket per­ceived that the goods or ser­vices orig­i­nated from a par­tic­u­lar com­pany be­cause of the trade­mark in ques­tion (in this case, the shape of the black cab), as op­posed to any other trade­mark.

This was not the case here. Ac­cord­ing to the judge, there was no proof that the rel­e­vant mar­ket (which in this case was taxi driv­ers rather than taxi users) per­ceived the shape as a sign that the taxis orig­i­nated from the Lon­don Taxi Cor­po­ra­tion. The judge seemed to find it rel­e­vant that the Lon­don Taxi Cor­po­ra­tion had never pro­moted the shape of the cab, and the mere fact that it had been de­scribed as “iconic” in the press did not mean that it in­di­cated own­er­ship in the Lon­don Taxi Cor­po­ra­tion.

On top of this, the judge found that the reg­is­tra­tions breached the pro­vi­sion in EU and UK trade­mark law that says that a shape can­not be reg­is­tered if it is one that gives sub­stan­tial value to the goods. The judge said the

Pic­ture: iSTOCK

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