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UK court rejects Nestle's bid to trademark KitKat shape

18 May 2017

The court followed an earlier judgement by the High Court and rejected Nestlé's appeal - ruling in favor of Cadbury owner Mondelēz worldwide. In that ruling, Mr Justice Arnold said the shape had not acquired distinctive character and that Nestlé had not promoted the shape as a selling point because packaging hid the design.

Previous year a High Court judge said the shape of Nestle's chocolate stalwart could not be patented.

Today's decision upholds that ruling.

The Court of Appeal ruled against the confectionary firm trademarking the chocolate bar following a long-running legal battle with Cadbury.

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At issue is the sale in the United Kingdom of the Norweigan candy bar Kvikk Lunsj, which also has a four-finger shape, although its packaging is distinctive and not readily confused with that of the Kit Kat bar.

Sally Britton, intellectual property lawyer at Mishcon de Reya, said: "The court's decision sets a high bar for the registration of shape marks".

The Court of Appeals's Wednesday decision affirmed a lower court ruling that the KitKat's "four-finger" design can not be considered a trademark.

According to the court, the EUIPO erred by failing to determine whether the shape had acquired distinctiveness in every European Union member state - though the court did accept the shape had acquired distinctiveness in the UK.

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The Court of Appeal said the KitKat shape alone - without branding - had failed to gain distinctiveness to be registered as a shape mark. It concluded the shape of the KitKat was distinctive in the UK.

Nestle's biggest rival, Cadbury, said it was "pleased" with the ruling and that it does "not believe the shape of the KitKat bar should be protected as a trademark".

In a statement released following the ruling, Nestle said it is considering its response to the court's decision.

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UK court rejects Nestle's bid to trademark KitKat shape