A horse is a horse (of course, of course). Even the edible variety.

Posted: 04/12/2009 Chocolaterie Guylian N.V. (“Guylian”), a Belgian manufacturer of boxed chocolates, recently failed in its attempt to register, in Australia, its seahorse shaped praline chocolate as a 3D shape trade mark. Justice Sundberg of the Federal Court held that the seahorse shape was not entirely concocted by Guylian. His Honour considered that the seahorse shape created an impression of a real animal and accepted that a shape of a real animal was not, for that reason alone, inherently adapted to distinguish. His Honour conceded that there was a likelihood that other manufacturers would wish to make chocolates in a similar shape. Guylian attempted to show that the chocolate seahorse shape had become distinctive through use by tendering evidence from a national market survey. The survey demonstrated that 40.6% of respondents associated Guylian with the seahorse shaped chocolate. Only 13.3% of respondents associated another chocolate manufacturer with the seahorse shape. However, Guylian’s position was rejected by the Federal Court, with Sundberg J finding that the “Guylian” and “G” trade marks diluted and diminished any trade mark significance the seahorse shape might otherwise have had: the survey results reflected use of the seahorse shape alongside “Guylian” and “G” rather than use of the seahorse shape alone as a trade mark. Having regard to Guylian's use of the shape and the extent to which it was inherently adapted to distinguish, Sundberg J was not satisfied that the shape did or would distinguish the designated goods as being Guylian's. His Honour held that the seahorse shape was taken not to be capable of distinguishing Guylian's goods from the goods of other persons and the application was dismissed. Guylian chose not to appeal the decision.