Nestle given two fingers... when it wanted four.
The Court of Appeal has dismissed Nestle’s appeal to register the shape of the KIT KAT four-fingered chocolate bar as a 3-D trade mark in the UK.
The Court upheld the decision of the High Court and agreed that the shape of the KIT KAT is not sufficiently distinctive to render it capable of registration as a trade mark.
Nestle had argued that the consumer had been educated to view the shape of the KIT KAT as a trade mark, by virtue of the considerable use of the shape in the marketplace in the UK, and had provided evidence to support that claim.
However, whilst the evidence did show that the consumer associated the shape of the KIT KAT bar with Nestle, it did not prove that the consumer exclusively perceived the shape as an indication that the bar originated from Nestle. In order for a trade mark to be sufficiently distinctive to proceed to registration, the consumer must definitively view that trade mark as an indication that the goods or services for which it is used originate from a single source, which was not proven in this case. The Court could not conclude that the consumer saw the shape and, based on that shape alone, concluded that it was a KIT KAT which came from Nestle.
It is possible that Nestle will appeal the decision to the Supreme Court so this may not be the end of the matter.
The decision provides helpful guidance for the assessment of acquired distinctive character in circumstances where a mark is not inherently distinctive.
Our trade mark practitioners would be delighted to discuss the impact of the case with you. If you feel it is relevant to your own business then please don’t hesitate to contact us.