In 2002 Article 3(1)(e) of the Community Trade Marks Directive (the Directive) (equivalent to s3(2)(b) of the Trade Marks Act 1994 (the Act)) was considered in a rerun of Phillips v Remington where Philips this time attempted to register a three headed shaver in a clover leaf style.

Based on the previous European Court of Justice (ECJ) wherein the ECJ stated that if it is established that the essential features of the shape are attributable only to the technical result and the ground for refusal or invalidity cannot be overcome by establishing that there are other shapes which allow the same technical result to be obtained, Remington argued that the clover leaf stretched the skin and made the shaver more effective. 

Philips meanwhile did not deny the brilliance of their design, but argued that the key to the ruling was the word ONLY, stressing that the proposed mark was not wholly attributable to the technical effect, and was merely aesthetic.

Rimer J stated that provided each such feature as a whole performs a technical function, it matters not that some minute elements of it may not themselves contribute to that performance.

Trademarkroom