The shape of things to come

Most of us are now familiar with the idea that a shape can gain protection as a registered trade mark. The Coca-Cola bottle is a famous example.

An Australian Federal Court decision this month (Bodum v DKSH Australia [2011] FCAFC 98) held that unregistered rights in features of a product’s shape can also be protected, if the shape itself has acquired a sufficient reputation. 

The basis of Bodum’s claim against DKSH was the prohibition on misleading and deceptive conduct in the Australian Consumer Law (formerly the Trade Practices Act) and the tort of “passing off”. Bodum argued that the reputation in features and shape of Bodum’s famous Chambord coffee plunger (illustrated) was so vast and enduring that consumers seeing the shape would be misled into thinking that DKSH’s competing Euroline plunger was in fact the Bodum one. The Court agreed.

An important consideration was the way these coffee plungers are marketed to consumers – out of and often away from the packaging that bore the rival trader’s mark. As the product itself was otherwise devoid of any label, tag, name or logo that would otherwise differentiate it from the iconic Bodum plunger, the Court held that consumers were likely to be misled.

Have a look at the case and see for yourself whether you agree: Bodum v DKSH Australia [2011] FCAFC 98


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