CA-2025-000162 - [2025] EWCA Civ 1340

The judge wrongly interpreted Dyson as authority for the proposition that the fact that the written description of a mark allows for “unrepresented signs”, and that the pictorial depiction is only an example of the mark, is fatal to registrability, or a factor against registrability.

The judge wrongly interpreted the Trade Marks which led her to overstate the degree of variation encompassed by each mark.

In her analysis of the “one third or more” wording in the written descriptions of the Trade Marks, the judge wrongly confused the requirement of clarity and precision with a requirement that any variations are depicted in the pictorial depiction of the mark.

In her assessment of the degree of variation encompassed by the Trade Marks, the Judge wrongly focussed on visual differences and omitted to consider properly the impact on the origin message.