Jaguar Land Rover (JLR) filed two shape trade mark applications back in 2016 to protect the shape of its Land Rover Defender 90 and Land Rover Defender 110. These applications were opposed by Ineos Industries Holdings Limited, but also refused by the UKIPO. The UKIPO had originally rejected their applications on the basis that JLR could not protect the outline and styling details of the original Defender. This did not stop JLR appealing, which failed according to the recent decision. The Hearing Office  found that the shape marks lacked inherent distinctiveness. This means that Ineos, who planned to manufacture its new model Grenadier (which is different in details but similar in other parts) can now proceed with its launch next year.

What we can see from this decision is that shape marks are still hard to register. The previous unsuccessful but well-known shape applications are London Taxi Company’s black cab and Nestle’s four-finger shape for Kit Kat. What seems to be problem with these applications is to persuade the UKIPO that the shape marks have acquired inherent distinctiveness. Easier said than done, as illustrated by the current appeal decision.