No Break For Kit Kat As Cadbury Wins Again

In May 2017, the UK Court of Appeal ruled that Nestlé's 3D shape mark for the four-fingered Kit Kat product cannot be registered in the UK. This is despite the fact it has been previously registered in a number of countries worldwide. We look at the key issues for food companies in light of this decision.

Background

This chain of trade mark litigation commenced in January 2011 when Cadbury UK Limited ('Cadbury') first opposed the Société des Produits Nestlé SA ("Nestlé") 3D trade mark application. In order for a trade mark to be successfully registered, it must possess distinctive character. In the absence of what is known as "inherent distinctive character", it can be acquired. For example, Weetabix Limited successfully registered a 3D European trade mark for the Weetabix breakfast cereal due the distinctiveness it had acquired since it was first sold in the UK in 1932. The test for what constitutes acquired distinctive character has been the subject of much