The High Court has ruled that a shape mark registration for a Scrabble tile was invalidly registered.
The mark was described as “a three dimensional ivory-coloured tile on the top surface of which is shown a letter of the Roman alphabet and a number in the range of 1 to 10”, and was represented as follows:
The court held that the mark was not a sign nor was it capable of being represented graphically with sufficient clarity, precision, intelligibility or objectivity.
Ultimately, this decision is the right one. Without clearly defining the dimensions of the tile, the mark covered all conceivable combinations for an ivory-coloured tile shape with a letter and number on the surface, undoubtedly leading to confusion over the scope of protection of the mark.
By contrast, in Nestle v Cadbury the court held that a mark for the colour purple being the “predominant” colour applied to packaging was sufficiently certain to be capable of registration.