Whirlpool produces kitchen equipment, including an electric stand mixer known as the KitchenAid Artisan (the "Artisan") aimed at design-conscious consumers and sold at a premium price of over £300. Whirlpool owns a community trade mark registration in class 7 (electric beating and mixing machines) in respect of the shape of the machine, which bears the word 'KitchenAid' (the "CTM").
Kenwood, seeking to enter the same market, launched their own kMix mixer, which looked similar to the Artisan, although there were small differences and the word KENWOOD appeared beneath the dial.
Whirlpool alleged trade mark infringement under Articles 9(1)(b) and 9(1)(c) of Council Regulation 40/94 (the "Regulation"), and passing off. Whirlpool claimed that the CTM had a reputation in the community and that as the kMix was of a similar shape to the CTM it took unfair advantage of, or was detrimental to, the distinctive character or repute of the CTM.