... is necessary for fair competition that some marks be kept free for other traders to use; 1. More difficult to establish inherent distinctiveness for non-traditional marks Consumer perception is of central importance when determining the distinctiveness of a non-traditional mark. The ECJ affirmed in Linde v Deutsches Patentamt2 that in interpreting Art 3(1)(b) of the Directive3 [and consequently s 3(1)(b) TMA 1994], a trade mark's distinctiveness must be assessed by reference to the consumers' perception of the goods and services for the trade mark is sought. It is generally more likely that consumers will recognise a word or figure, and not a three-dimensional shape, smell or colour as a trade mark. That non-traditional marks are not usually recognised as a sign of origin4 is a considerable burden on those seeking to register non-traditional marks. So although the ECJ held that stricter criteria than those used for other categories of trade mark should ...

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