Upholding an earlier decision made by the Trade Marks Office, the Federal Court confirmed that the seahorse shape was not capable of distinguishing Guylian's products. This was despite the fact that the company has been successful in gaining trademark protection internationally, and it could point to survey evidence in which 40 per cent of respondents said they associated Guylian with the seahorse shape.

As discussed in a recent article by Freehills partner Frances Drummond and solicitor Tracy Nau, Guylian sought to rely on the decision in Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 in which Kenman were successful in gaining protection for their bug shaped confectionary on the basis that the shape was "entirely concocted".

Guylian argued that its seashore shape should also be considered "entirely concocted" because it possessed features not found on real seashores, such as a backwards curling tail and a stocky build. However Justice Sundberg was not convinced, saying that on balance, the average consumer would consider it a relatively ordinary seahorse.

He also concluded that the use of the seahorse shape on packaging (including seahorse shaped boxes) and marketing materials, and the company's sponsorship of marine conservation program Project Seahorse, were not sufficient to have educated the public to recognise the seahorse shape as distinctive of Guylian.

- Zoe Lyon