Nestle has lost its latest legal bid to secure trademark protection for its four-fingered Kit Kat.
The Court of Appeals's Wednesday decision affirmed a lower courtruling that the KitKat's "four-finger" design can not be considered a trademark.
The maker of KitKat has failed in its attempt to trademark the shape of the chocolate bar in the UK.
To view the full article, register now. The chancellor Sir Geoffrey Vos sitting with Lord Justice Kitchen and Lord Justice Floyd unanimously dismissed Nestle's appeal.
The squabble between the two chocolate giants can be traced back to 2010 when Nestle first attempted to trademark the KitKat shape.
"Nestle is disappointed by the Court of Appeal judgment and is considered next steps". "KitKat is much loved around the world and its four-finger shape is well known by consumers". It has nothing, therefore, to do with the informed choices that consumers make between similar products'.
Three judges unanimously allowed an appeal by Nestle that its rivals purple packaging could not be registered as a trademark because it lacked distinctive character.
The case has been heard in both English and European courts, with the most recent rulings in favour of Cadbury.
Sally Britton, an intellectual property lawyer at Mishcon de Reya, said today's decision "sets a high bar for the registration of shape marks".
In the United Kingdom the rulings by the Court of Appeal and High Court contrast with an earlier decision made by the General Court of the Court of Justice.
Nestle had to argue that customers relied on the distinctive shape alone to identify the chocolate bars, a hard task, given that the brand name is clearly marked on the candy's packaging. The Court ruled in December that this does not apply to four other countries (Belgium, Greece, Ireland and Portugal), a ruling Nestlé will also appeal. 'This judgment does not mean that our four finger-shape is now free for use in the United Kingdom or elsewhere.
It said KitKat's shape has been granted trademark protection in countries including Germany, France, Australia, South Africa and Canada.
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