The UK Law Gazette reports……Nestlé has once again failed to gain trade mark protection for the shape of its four-finger KitKat bar, in the latest twist in a long running battle with fellow confectionery giant Cadbury.
A decision handed down by the Court of Appeal today upheld a High Court ruling from January last year. 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.
Sally Britton, an intellectual property lawyer at London and New York firm Mishcon de Reya, said the ruling ‘sets a high bar’ for the registration of shapes, sounds, colours and smells as trademarks. ‘Non-traditional trade mark registrations covering shapes, sounds, colours and smells are becoming increasingly popular as brands look to experiences to drive brand value.’
She said the case is interesting as it examines the type of use and consumer recognition required to obtain monopoly protection over a shape mark. ‘Businesses seeking to protect non-traditional trade marks such as shapes or packaging will need to provide evidence that consumers are relying on that trade mark to identify the origin of the product,’ she added.
Nestlé and Cadbury (appearing in court under the name of its owner Mondel?z International) have been involved in an IP battle spanning close to a decade.
