In The London Taxi Corporation (t/a The London Taxi Company) v Frazer-Nash Ltd & Another, Mr Justice Arnold has ruled that one of London's most iconic vehicles, the black cab, is not unique after all, concluding that they are "devoid of inherent distinctive character".
The High Court rejected The London Taxi Company's ("LTC") passing off claim against a rival company, the makers of the environmentally friendly, hybrid powered, Metrocab, and has revoked its three-dimensional Community Trade Mark ("CTM") aimed to protect the design of the city's famous black cab.
The two trademarks in question comprised 3D drawings of the typical London taxi vehicle (see the case decision here for details). The LTC claimed that the Metrocab was substantially copied from the design of the TX4; the latest version of the hackney carriage manufactured by LTC.
Mr Justice Arnold said that the taxis are "merely a variation of the typical shape of a car" and ruled that trademarks exclusively relating to this shape should be deemed invalid. The ruling paves the way for the new 'green' taxi to be introduced onto London's roads over the coming years.
Arnold J further said that it was his view the CTM (the design of the black cab) would be perceived by the average consumer of taxis as a mere variation of the typical shape of a taxi.
The Metrocab taxi could not be said to infringe the CTM and this was purely because there was only a low degree of similarity and no likelihood of confusion. The Judge dismissed allegations of fraud by the LTC as "deeply implausible" and said that even if their trademarks were valid, the Metrocab was still not a copy of the TX4 model.
In respect of passing off Arnold J noted that whilst, in principle, LTC could claim goodwill in the features of the shape, he did not believe that LTC had done so. LTC's claim was not on specific features of shape common to LTC's models rather 'abstractions' describing common features. He found that he did not consider that these factors show that consumers of taxi services rely on these features as denoting the source of LTC's taxis.
Further, Arnold J could find no misrepresentation on the part of consumers that the Metrocab comes from the same source as taxi's manufactured by LTC.
For these reasons the claim for passing off failed.
The Metrocab is scheduled to go into production later this year. The project is at the forefront of a drive by Mayor Boris Johnson, to ensure that all new taxis produce zero-emissions by 2018.in: Case Law, News, Passing Off, Trade Marks