No breaks for Nestlé in Kit Kat battle with Cadbury

This week has seen the High Court dismissal of Nestlé’s appeal against the decision to reject its trade mark application for the 3D shape of its four finger Kit Kat.

Mr Justice Arnold commented that, “the proposed trademark had not acquired distinctive character and that the Court of Justice of the European Union (CJEU) had not sufficiently answered a question he had asked.”

Both Nestlé and Cadbury had appealed against aspects of the original decision made by the IPO in 2013.  The original examiner, Allan Jones, had said that, “the trade mark could not be registered on the basis that the mark not acquired distinctive character and that it consisted exclusively of a shape which results from the nature of the goods themselves.”

This week’s judgement raises the question of what gives something a distinctive character in terms of its shape and how does this translate into trade mark protection. 

Nestlé plan to appeal the decision.