IP Update: Tough Break For Nestlé On KIT KAT Shape Mark Registration

The Court of Justice of the European Union ("CJEU") has today handed down its much anticipated decision in Case C‑215/14- Société des Produits Nestlé SA v Cadbury UK Ltd.

The case concerned the renowned four finger shape of the KIT KAT chocolate bar and whether it could be the subject of trade mark protection, which could last indefinitely if renewed every 10 years. The CJEU decision, which largely follows the previous Opinion of Advocate General Wathelet, clarifies the limitations on acquiring distinctiveness through use, under the Trade Marks Directive (2008/95/EC). It also provides further clarification on the scope of the prohibitions on the registration of shape marks under the Trade Marks Directive.