No Break In Fight Over Kit Kat Three-Dimensional Trademark

The story begins in the UK in 1935, when a worker at Rowntree's York factory put an idea in the suggestion box for a snack that "a man could take to work in his pack." This idea led to the famous four-finger Kit Kat chocolate bar and, although Rowntree was acquired by Nestlé in 1988, the shape has remained almost entirely unchanged since 1935. Only its size has been altered slightly. It has been sold in the U.S. since 1970 by Hershey, pursuant to a license.

On July 8, 2010, Nestlé filed an application to register a UK trademark consisting of the shape of the Kit Kat product (except that it omits the embossed words "Kit Kat") for chocolate, chocolate coated wafer biscuits and similar products. Cadbury filed an opposition and, on June 20, 2013, the examiner found that the trademark was devoid of inherent distinctive character, and that it had not acquired such a character. The application was refused.