Kit Kat And Other Product Shapes

You might be forgiven for thinking that the law regarding trade mark protection for product shapes is a bit of a mess. The latest development is that the UK trade mark authorities have refused an application by Nestle to register the four-finger Kit Kat shape, which is described in the application as 'four trapezoid bars aligned on a rectangular base'. The reasoning: the shape isn't intended to act as a brand identifier but rather as an aid to the consumer, in that it helps the consumer break the bar up.  Which makes the shape technical in nature! The hearing officer went so far as to suggest that the brand identifier in the case of Kit Kat is in fact the colour red that's used on the packaging.   A somewhat surprising result, a mere year after the EU trade mark authorities decided that the Kit Kat shape could be registered as a Community Trade Mark (CTM).