Article March 17, 2016

Just how distinctive is a black cab?

Black Cabs aren’t having an easy ride at the moment; with the inexorable rise of Uber some think it’s only a matter of time before the black cab is confined to postcards and museums. Earlier this year the London Taxi Company, responsible for making the iconic vehicle, faced a further setback when it failed to successfully argue that a new competing eco-friendly taxi copied its own design.

The London Taxi Company brought claims for passing off and Trademark Infringement against the upstart competitor. Its action for passing off was immediately dismissed as “deeply implausible” by the judge, as the alterations and innovations made by the defendant meant it was no mere copy.

The two trademarks asserted related to three-dimensional drawings of the exterior of the typical black cab. The fact that Trademarks were held rather than patents or designs probably has something to do with the fact that Trademarks can offer protection in perpetuity providing that the mark is properly maintained and in continuous use. This is a far more appealing form of protection than the time-limited protection offered by registered designs, especially for an iconic design unlikely to alter over time.
However, this seemingly ingenious solution failed to pay off the London Cab Company as the Trademarks were invalidated. In order to be deemed valid Trademarks must be sufficiently distinctive to allow the consumer to distinguish it from other goods. Lord Justice Arnold stated that the Black Cab mark was “devoid of inherent distinctive character” and that the taxis were “merely a variation of the typical shape of a car” and thus the marks were ineligible for protection.

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