The Fairway trade mark was a CTM registered for motor vehicles, accessories and parts. In addition LTC claimed goodwill in these models, as well as the TX4. LTC argued that the defendants intended to deceive the public as to the origin of the new Metrocab by adopting a shape which closely resembled LTC taxis and that, by marketing the Metrocab, they would pay day loans commit trademark infringement and passing off. However, he rejected its submission that members of the public would also be considered average consumers of taxis for these purposes.

Whilst taxi drivers would be careful and knowledgeable purchasers of the taxis, members of the public were merely "users of the service provided by the consumer of online payday loans goods" who were likely to pay low levels of attention to the actual taxis themselves.

Distinctive character The defendants argued that the CTM for the Fairway shape of LTC cab was invalid because it was devoid of inherently distinctive character. However, neither point was online payday loans to show that the average consumer would perceive the marks as anything more significant than a variation on the theme of a London taxi. Even online payday loans the marks departed significantly from the norm and customs of the sector, the average consumer would not consider them as designating the origin of the taxis.

Hence, both the CTM and the UKTM were considered devoid of distinctive character. Had the trade marks acquired inherently distinctive character under Article 3(3) of the Trade Marks Directive. He considered the fact that the shape was protected as a registered design was a relevant, but not determinative consideration. The CTM was not protected by a registered design, but nevertheless the same conclusion was reached in respect of it.

The Fairway model had stopped being produced in 1997 and had only been available to purchase second hand after that date. Assuming for a moment that the sale of used vehicles could constitute use of a trade mark (which in itself was a difficult question that the CJEU would have to finally resolve), LTC had not displayed genuine use of the Fairway mark.

Excerpt from the UKTM Arnold J held that the sales of used Fairways simply amounted to recirculating goods which had already been put on the market under the CTM. On the question of whether the sale of TX1s, TXIIs and TX4s during the relevant period constituted use of the Fairway CTM in a form different in elements which did not alter its distinctive character, Arnold J held that any distinctive character attributable to the CTM derived from the totality of its appearance.

The other LTC models of cars were clearly different from the Fairway (and therefore the CTM) in a number of respects. Infringement Entertaining the possibility for a moment that the marks were valid and capable of being infringed, Arnold J found that they would not have been infringed. It was bigger, it bore prominent Metrocab advertising and the rear and side views of the cars were quite different.

Taking into account the overall impression of the new Metrocab, it did look a London taxi but not like an LTC taxi or either of the marks. Neither the CTM nor the UKTM had acquired a reputation and, even if they had, Arnold J was not satisfied that the new Metrocab would have cause detriment to their distinctive character. Arnold J also refused to accept that the defendants intended to gain unfair advantage by exploiting, or riding on the coat-tails of the trade marks.

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