Kit Kat Shape: Is It Game Over?

The Kit Kat shape saga goes on and on. A few months back we reported on how the Advocate General ("AG") of the EU had written an opinion on the issue of an opposition by Cadbury (now Mondelez) to Nestle's application to register the four-fingered shape of its Kit Kat chocolate bar as a UK trade mark . The opinion was written because a UK court had referred the issue to the Court of Justice of the European Union ("CJEU") for guidance. The AG's opinion was that the trade mark application should fail.

There were two reasons for this. The first was that the application contravened the functionality or "technical result" exclusion; in other words, the provision that says that a trade mark must not consist exclusively of the shape that results from the nature of the goods, or the shape that is necessary to obtain a technical result. On this score, the AG suggested that this exclusion applies to both the way in which the goods function and the way in which they are