I'm thinking shapes, I'm thinking fruity millennium bug jubes.
I'm thinking Kenman Kandy. Specifically, the full federal court decision (French, Lindgren and Stone JJ) handed down on 28 August.
Given that shape trade marks are kinda new (well, relatively speaking) and there are not that many decisions about them above the Registrar level, this is a biggie.
The big question: whether a shape (like a concocted bug like shape) is inherently adapted to distinguish (that is, whether you can register the mark before you can show that, in the market, consumers actually see it as a trade mark - indicating a connection with a particular manufacturer).
particularly like the French J phrase: "This [the test of 'inherently adapted to distinguish'] does not involve adventures in the Aristotelian taxonomy of form and substance. It requires a practical evaluative judgment about the effects of the relevant mark in the real world."
Although, with respect, I beg to differ - at least to some extent. When we are talking about applying a shape 'to' a product, and that product takes on the shape, where do you draw the line? What is the shape of a "gelatinous" confectionary, without the shape it is moulded into? a blob?
Personally, I prefer the judgment of Lindgren J, which really grapples with the special problems associated with shape marks - and the problem of drawing a line between goods and the shape being applied. And acknowledges the basic problem that a confectionary maker has to adopt some kind of shape, that children like animals, and in particular children like friendly looking animals.
To quote Lindgren J:

"All goods must have a shape and a colour. I cannot presently conceive of circumstances in which the shape or colour of any goods would be inherently adapted to distinguish them. ... There is a similarity, in the present respect, between the shape and colour of goods on the one hand, and a purely descriptive word on the other. Neither one is inherently adapted to distinguish. The only possibility of its distinguishing is by reason of its having already acquired a secondary meaning."

I agree. Manufacturers should have to go to s41(5) for shapes and colours. I'm concerned that this decision will encourage the Trade Marks Office to be more liberal in granting shape marks - especially before they are used, adding to the thicket of intellectual property rights that new entrants to a market must negotiate.