There's seemingly no end to the question of whether or not
Nestlé can register the four-finger shape of its Kit Kat
chocolate bar as a trade mark.
Except, of course, in South Africa, where we know that it can.
We know that because the South African Supreme Court of Appeal came
to that conclusion in 2014. The court held that the shape trade
mark was not hit by the "technical result" exclusion,
because the trade mark did not consist "exclusively" of a
shape that's necessary to obtain a technical result. The court
felt that, even though there were functional features to the shape,
there were also non-functional features. The court also held that
the four-finger shape had become distinctive through use. The court
accepted that there had been substantial use of the shape in South
Africa, and it was happy to assume that people regarded the shape
as a trade mark. The fact that the shape had always been used in
conjunction with other trade marks, most notably the brand name
