Breaking Nestlé's Kit Kat Trade Mark

Nestlé is continuing its battle to register the shape of the four finger Kit Kat chocolate bar as a trade mark in the UK. On 11 June, Advocate General Wathelet provided his advice to the Court of Justice of the EU ("CJEU") on the matter.

Under Article 3 of Council Directive (2008/95/EC), which harmonizes trade mark law around the EU, a trade mark must not be registered if (among others):

• it is devoid of distinctive character (Article 3(1)(b));
• it consists exclusively of a shape which results from the nature of the goods themselves (Article 3(1)(e)(i); or
• it consists exclusively of a shape which is necessary to obtain a technical result (Article 3(1)(e)(ii)).

However, in relation to the first obstacle, distinctive character, a trade mark will not necessarily be refused registration under this section if it has already acquired a distinctive character as a result of the use made of it in the market place.