Court of Appeal decision: Shape of KitKat’s bar should not be protected as a UK trade mark

Polly Hill, Associate in our Commercial Dispute Resolution department provides a brief overview of this decision.

Yesterday, on 17 May 2017 Nestlé failed to secure trade mark protection for the shape of its four-finger KitKat bar in its long running battle with Cadbury.

The Court of Appeal upheld a High Court ruling that the shape does not have the acquired distinctive character and that Nestlé had not promoted the shape as a selling point because the packaging hid the design.

This decision sets a high hurdle for the protection of non-traditional trademarks such as shapes, colours, smells and sounds which are on the increase when some brands are promoted by these experiences. Therefore business will need to demonstrate that consumers are relying on the shape or packaging as being the origin of the product.

This blog was written by:  Polly Hill

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