David's analysis raised some unanswerable questions concerning the rationale that results in the same shape being either protectable or the exact opposite, depending on whether trade mark or design law is invoked as the basis for its protection, and depending on which sort of design it is.

It seems to me that the logical conclusion to be drawn is this: if it is either right or wrong for a business to be able to monopolise a shape in the marketplace, the needs of the marketplace should be identified first and then filtered back into the exclusions from protection for both trade marks and designs, so that they are as far as possible coextensive [adds David, "so long as it's not the ECJ's criteria in Philips ..."].