Is the Guylians Seahorse in fact Distinctive of its Goods?
Given the mark was not inherently adapted to distinguish, his Honour had to then consider whether Guylian had shown that its mark had become distinctive of its chocolates through use. Sundberg J considered that despite the extensive sales and marketing of pralines and chocolates bearing (or including) the seahorse, Guylian failed to clear this hurdle because: • First, the seahorse shape (or, rather, an image of the shape) is used on Guylian’s packaging to attract consumers and provide an example of the box’s contents. • Second, the “Guylian” trade mark printed on Guylian’s packaging diluted the effect of any trade mark significance that might otherwise attach to the seahorse. • Third, although the shape of the seahorse shaped boxes is unique and has some ability to catch the eye, both the “Guylian” trade mark and the “G” trade mark feature significantly on the front of the boxes, which diminishes the trade mark significance the image of the seahorse shape might otherwise have. • Finall
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