Whirlpool Corp. and another v Kenwood Limited [2009] EWCA Civ 753

Case Summary  |  Judgment  |  23 July 2009

Represented by members of chambers on both sides, this action is of great importance in the context of the alleged infringement of three dimensional trade marks by the shape of goods. The action involved allegations of trade mark infringement and passing off in relation to a new Kenwood food mixer, the "kMix", brought by the manufacturers of the KitchenAid Artisan food mixer. The Community trade mark in issue was a three dimensional mark for the shape of a KitchenAid food mixer with the word 'KitchenAid' applied to it. Whirlpool alleged that the Kenwood kMix mixer infringed its Community trade mark and that the sale of the kMix constituted passing off, relying on goodwill it claimed to own in the shape and get up of its KitchenAid Artisan mixer. Kenwood put forward a defence on all aspects of the claims and also counterclaimed for a declaration of invalidity of the CTM in issue. The 8 day trial was heard in May 2008 before Geoffrey Hobbs QC sitting as a Deputy Judge of the Chancery Division of the High Court. James Mellor QC and Tom Moody-Stuart appeared for the Claimant, Whirlpool Andrew Lykiardopoulos and Iona Berkeley appeared as Junior Counsel for the Defendant, Kenwood. Judgment was delivered in July 2008.